In Canada, criminal offences are classified into one of three categories, of varying degrees of seriousness. The most serious are indictable offences, and the least serious are summary conviction offences. In between these two categories is a category of offences for which the Crown prosecutor may elect to proceed by way of either of the other two categories. This third category is known as “hybrid offences” or Crown-electable offences.

A relatively small percentage of criminal offences are simply classified as summary conviction offences. Such offences generally carry a maximum penalty of six months in jail. Trials of such offences can take place in lower-level courts, and an accused is not entitled to trial by jury unless the case is being heard simultaneously with an indictable offence.

Indictable offences are the most serious types of offences and include matters such as fraud in excess of CAD5,000, terrorism, treason and robbery. Sentences for these types of offences vary greatly, up to a potential maximum penalty of life imprisonment.

Typically, those charged with these types of offences may elect:

• trial by judge alone in (a lower) provincial court, foregoing a preliminary hearing;
• trial by judge alone in the Superior Court; or
• trial by judge and jury in the Superior Court.

If opting for a Superior Court proceeding, the accused may proceed with or without a preliminary hearing. However, there are limited exceptions, and not all indictable offence charges entitle the accused to a preliminary hearing or a jury trial. Some such offences do not permit the accused to elect to proceed by judge alone without the consent of the Crown prosecutor.

Most offences in the Criminal Code of Canada, including certain less serious white-collar crimes, are hybrid offences for which the Crown may exercise its sole discretion to proceed by indictment or summary conviction.

In general, to convict a person of an offence in Canada, the Crown must prove, beyond a reasonable doubt, that the accused carried out the requisite act (actus reus) with the necessary state of mind (mens rea). However, there are also “strict liability” offences, for which the Crown need not prove mens rea to secure a conviction. This category includes some white-collar crimes – for example, where a corporation has failed to prevent certain results.

An accused person may also be convicted of attempting, conspiring, assisting or encouraging a criminal offence (collectively known as “inchoate offences”). In addition, acting as an accessory to aid, abet, counsel or procure the commission of a criminal offence by a principal offender is an offence.

Generally, Canadian criminal law requires that the prosecution prove each element of an offence beyond a reasonable doubt. The accused benefits from a presumption of innocence.

In civil cases, the plaintiff must prove their claim on a balance of probabilities. Similarly, defendants must prove any affirmative defences on a balance of probabilities.

Indictable offences are not subject to a limitation period, so an accused can be charged and tried for such offences years after the events giving rise to the charges.

Summary conviction offences are subject to a one-year limitation period, which starts running on the date the offence was committed. For hybrid offences, this limitation period would only apply if the Crown prosecutor opted to proceed by way of summary conviction.

Where allegations of civil fraud and other common law causes of action are at issue, in most Canadian provinces the limitation period to commence an action will begin two years from the date on which the plaintiff knew, or should have known, that the breach or improper conduct occurred. A limitation period is prescribed, and can be extended where a defendant can establish that there has been fraudulent concealment of the acts complained of and/or if discoverability principles are deemed to apply.

In general, Canadian courts have jurisdiction over offences committed within the territory of Canada. It is sufficient for jurisdictional purposes for the offence to be initiated or fulfilled within Canada, but it is unnecessary for both to have taken place within Canada. There is a general prohibition on being convicted of an offence committed entirely outside Canada, unless a statute specifically allows for an exception. In such cases, there must be a “real and substantial connection” between Canada and the offence, meaning that a “significant portion” of the offence took place in Canada to allow for a “meaningful” connection thereto.

In addition, where an act or omission is committed outside Canada and is nonetheless by statute made an offence when so committed, the accused can be charged and tried for the offence by Canadian courts, even if the accused is not in Canada. For example, Section 5 of the Corruption of Foreign Public Officials Act (CFPOA) deems acts or omissions that Canadian individuals or corporations, partnerships, etc, commit outside Canada to have been committed in Canada if they would constitute an offence under that legislation had they been committed in Canada.

Since the provisions of this legislation creating these offences include the phrase “directly or indirectly”, improper payments or other benefits made outside Canada by subsidiaries and agents may give rise to an offence by the Canadian parent company or principal, as the case may be.

Canada is party to a number of bilateral and multilateral mutual legal assistance treaties. The Mutual Legal Assistance in Criminal Matters Act allows Canadian authorities to obtain court orders on behalf of countries that are parties to mutual legal assistance agreements with Canada. Treaty counties may be able to obtain the following court-ordered assistance:

• search and seizure;
• gathering physical or documentary materials;
• compelling witnesses to give statements or testimony, including by video or audio link;
• transferring sentenced persons to the requesting country, with their consent, to give evidence or to assist in an investigation;
• lending court exhibits;
• examining a place or site in Canada;
• enforcing foreign restraint, seizure and forfeiture orders; and
• enforcing criminal fines.

A Canadian judge may make an order for the gathering of evidence, where satisfied that there are reasonable grounds to believe that:

• an offence has been committed; and
• evidence of the commission of the offence or information that may reveal the whereabouts of a person who is suspected of having committed the offence will be found in Canada.

Limited forms of assistance are available to countries that are not parties to mutual legal assistance treaties with Canada. Non-treaty countries must use the letters rogatory process, whereby a judge, court or tribunal in the requesting country issues a request, to obtain evidence in Canada.

Extradition requests are governed by the Extradition Act, international treaties and the Charter. An extradition request must be approved by the Department of Justice, a judge of the Superior Court and the Minister of Justice. A similar process is used when Canadian authorities request the extradition of a person from another state to Canada.

In the competition context, the International Affairs Directorate of the Competition Bureau (the “Bureau”) supports its enforcement efforts by negotiating co-operation instruments with foreign authorities. The Bureau has mutual legal assistance treaties with 19 jurisdictions and also co-operates with foreign authorities through other instruments. Recently, the Bureau strengthened its relationships with its “Five Eyes” counterparts by entering into the Multilateral Mutual Assistance and Cooperation Framework for Competition Authorities.

Corporations and other organisations can be held criminally liable for offences in both the Criminal Code and the CFPOA. Section 22.2 of the Criminal Code governs with a focus on the conduct of a corporation’s senior officers, particularly those with the authority to design and supervise the implementation of corporate policies. Recent case law indicates that in some circumstances, the actions of persons in mid-level management can give rise to corporate criminal liability.

Section 22.2 provides that a corporation may be liable for the acts of its senior officers where the person intends to benefit the company and, acting within the scope of authority, is a party to the offence, directs another director, partner, employee, member, agent or contractor to become party to the offence, or knows a representative of the organisation is about to become a party to the offence and does not take reasonable measures to stop the conduct. A due diligence defence is available to the company, whereby it can put forward evidence that it took steps to prevent the commission of an offence, including steps such as the implementation of compliance programmes or risk assessments.

In Canada, criminal liability is not typically assigned to corporations for the conduct of employees. Courts consider whether the alleged criminal act is carried out as a fraud on the employer, and/or solely for the benefit of the employee. Under the corporate identity doctrine, in these circumstances the employee will not be considered a “directing mind” of the corporation; thus, individual criminality, rather than corporate criminality, will most often be assigned.

Successor liability for the acts or omissions of a predecessor corporation is a fact-specific determination, with the case law to date relating mainly to civil liability. An asset purchase will generally not give rise to successor liability; however, a share purchase or amalgamation may result in continuing exposure. To determine questions of successor liability, some Canadian courts have considered whether there has been a “de facto merger” of the entities, with a focus on whether there has been continuity of ownership, management and general business operations.

The Criminal Code sets out the purpose of sentencing and establishes principles used to guide judges in imposing sentences. The Criminal Code also sets out the following factors to be considered when sentencing an organisation:

• any advantage realised by the organisation as a result of the offence;
• the degree of planning involved in carrying out the offence and the duration and complexity thereof;
• whether the organisation has attempted to conceal its assets, or convert them, in order to show that it is not able to pay a fine or make restitution;
• the impact that the sentence would have on the economic viability of the organisation and the continued employment of its employees;
• the cost to public authorities of the investigation and prosecution of the offence;
• any regulatory penalty imposed on the organisation or one of its representatives in respect of the conduct that formed the basis of the offence;
• whether the organisation was – or any of its representatives who were involved in the commission of the offence were – convicted of a similar offence or sanctioned by a regulatory body for similar conduct;
• any penalty imposed by the organisation on a representative for their role in the commission of the offence;
• any restitution that the organisation is ordered to make or any amount that the organisation has paid to a victim of the offence; and
• any measures that the organisation has taken to reduce the likelihood of it committing a subsequent offence.

Distinct sentencing principles exist for regulatory offences. Generally, in assessing sentences for regulatory offences, the goal is to impose an appropriate sentence to achieve general and specific deterrence, bearing in mind principles of sentencing including proportionality and parity. Given that regulatory offences are created under a range of disparate statutes, many of which are provincial legislation, the principles of sentencing vary depending on the relevant offence and jurisdiction.

Courts and regulators have discretion to impose sentences after an accused is convicted of an offence. An accused may also enter into a plea agreement with prosecutors – however, plea agreements are still subject to approval from the relevant court or regulator.

When a remediation agreement is entered into, any conditions of that agreement are not considered to be part of a sentence. However, conditions of a remediation agreement may include financial penalties, disgorgement, mandatory implementation of compliance measures and reparations to victims. The terms of a remediation agreement are negotiated between the accused and prosecutors. Negotiation of a remediation agreement must be approved by the Attorney General, and the final terms require judicial approval.

The federal government has also implemented an “integrity regime” designed to ensure that the government only does business with ethical suppliers. The integrity regime includes an “ineligibility and suspension policy” under which businesses may be declared ineligible or suspended from doing business with the government.

In recent years, the Canadian Parliament passed legislation to implement more serious sanctions against those convicted of fraud. In addition to sentencing reforms, Canadian courts are obliged to inquire whether victims of the offence were given an opportunity to seek restitution. If so, and if the court does not order restitution, the judge must give reasons for its decision to so decline.

Canadian judges can issue warrants to search, seize and detain property where there are reasonable grounds for the judge to determine that the property could be subject to a criminal forfeiture order. Canadian judges may also grant a restraining order prohibiting any person from disposing or dealing with the property, except as authorised by the order.

If an accused is convicted of certain designated offences and the Crown can prove (on a balance of probabilities) that specific property constitutes the proceeds of crime and that the convicted person committed the designated offence in relation to that same property, the court shall order the forfeiture of the property to the Crown. Alternatively, even if it is not demonstrated that the crime was committed in relation to the specific property, the court nonetheless retains discretion to make a forfeiture order if it is proven beyond a reasonable doubt that the property is connected to the proceeds of crime.

Canadian courts may impose fines equal to the value of the property, rather than a forfeiture order, if the property is not subject to forfeiture. Such fines are discretionary, and courts are to consider the offender’s ability to pay. In the event of default in payment of a fine, a term of imprisonment can be imposed.

In Canada, both federal and provincial authorities investigate and prosecute white-collar offences.

The Royal Canadian Mounted Police (RCMP), Canada’s federal police service, is responsible for investigating many white-collar criminal offences. The RCMP has specific programmes in place to address anti-corruption and financial crimes.

However, in recent years, the RCMP has outsourced some white-collar investigations work. Various provincial and local police departments may also investigate white-collar offences.

The federal Public Prosecution Service of Canada (PPSC) is an independent prosecuting authority that prosecutes federal offences. The PPSC publishes guidelines for the application of the provisions of the Criminal Code that deal with remediation agreements, Canada’s version of deferred prosecution agreements.

Provincially, Crown attorneys are responsible for prosecuting Criminal Code offences and in Ontario are part of the provincial Ministry of the Attorney General. Crown counsel also form part of the Ministry of the Attorney General and prosecute regulatory offences, and may also act as civil counsel to other ministries.

Federal and provincial regulators have their own investigations staff. For example, many of the provincial securities regulators, such as the Ontario Securities Commission, have robust teams dedicated to the investigation of regulatory offences.

The province of Ontario has established a Serious Fraud Office (Ontario SFO) under the same model as the UK anti-fraud agency of the same name. The Ontario SFO brings together fraud investigators and specialised Crown prosecutors.

The Bureau investigates both criminal and civil matters under the Competition Act but refers criminal matters to the Director of Public Prosecutions, who determines whether to prosecute them. In some matters, the Competition Act provides a choice between either a criminal or a civil track.

In Budget 2022, the government of Canada announced CAD2 million in funding to Public Safety Canada over the course of 2022 and 2023 to study the creation of a national financial crime agency in Canada. This commitment was updated in Budget 2023, and a consultation paper issued by the Department of Finance announced that the government would establish a lead enforcement agency, the Canada Financial Crimes Agency, to investigate major financial crimes. In Budget 2024, the government of Canada allocated funding to the Department of Finance to finalise the structure and scope of the Communications Fraud Control Association (CFCA).

Police, regulators and prosecutors may initiate an investigation. The RCMP and other police services may initiate investigations independently or working alongside Crown counsel. Crown counsel play a larger role in the early stages of an investigation where judicial authorisations are required for the purposes of evidence gathering. Federally, the PPSC has drafted guidelines governing investigations and the relationship between Crown counsel and investigative agencies.

Large regulators, such as the Bureau and provincial securities commissions, have teams of investigators. Similarly, provincial ministries that act as regulators have teams of investigators that work with provincial Crown counsel. As discussed in greater detail in 2.3 Powers of Investigation, Charter rights, which constrain investigators in criminal investigations, are not always engaged during a regulatory investigation.

Bureau investigations, whether civil or criminal, are often commenced after the Bureau receives information from whistle-blowers or immunity or leniency applicants, or competitor or consumer complaints.

In criminal investigations and regulatory investigations supporting criminal charges, investigative authorities are constrained by the subject’s Charter rights, such as the right to be protected against unreasonable search and seizure. Accordingly, in these situations, the subject of an investigation may not be compelled to provide evidence.

Where a subject’s Charter rights are engaged, investigative authorities still have criminal investigative tools, including search warrants. Warrants may allow investigative authorities to search and seize evidence, implement wire taps, compel testimony under oath or require the production of documents or responses to written information requests.

By contrast, in a regulatory investigation where the predominant purpose of the inquiry is not penal liability, the subject of an investigation may be compelled to provide evidence.

In the competition context, the Bureau has broad investigative powers to obtain information from companies under investigation, their employees, officers and directors, as well as third-party suppliers, customers, competitors and other industry sources. Information may be obtained informally through voluntary information requests or formally through court orders for document and data production, written responses to questions and oral examinations, as well as search warrants or wiretaps. Search warrants may be executed as part of dawn raids.

Internal investigations are not strictly required under Canadian law. However, directors and officers should be mindful of their fiduciary duties in considering whether an internal investigation is appropriate. Management should also be mindful of the degree of independence required to properly conduct the investigation and take care to avoid internal conflicts.

Internal investigations may assist organisations in assessing liabilities and are particularly helpful for organisations that are considering self-reporting. For example, disclosure of the results of an internal investigation may assist an organisation that is seeking a remediation agreement.

While internal investigations are not mandatory under the Competition Act, the immunity and leniency programme, jointly administered by the Bureau and PPSC, requires applicants to undertake an internal investigation and reveal all non-compliant conduct of which they become aware, as well as provide progress and/or status updates on the internal investigations. As a result, organisations typically conduct a preliminary internal investigation and engage in fact-finding before seeking to rely on the immunity and leniency programmes.

Canada is party to a number of bilateral and multilateral mutual legal assistance treaties. The Mutual Legal Assistance in Criminal Matters Act allows Canadian authorities to obtain court orders on behalf of countries that are parties to mutual legal assistance agreements with Canada. Treaty counties may be able to obtain the following court-ordered assistance:

• search and seizure;
• gathering physical or documentary materials;
• compelling witnesses to give statements or testimony, including by video or audio link;
• transferring sentenced persons to the requesting country, with their consent, to give evidence or to assist in an investigation;
• ending court exhibits;
• examining a place or site in Canada;
• enforcing foreign restraint, seizure and forfeiture orders; and
• enforcing criminal fines.

A Canadian judge may make an order for the gathering of evidence, where satisfied that there are reasonable grounds to believe that:

• an offence has been committed; and
• evidence of the commission of the offence or information that may reveal the whereabouts of a person who is suspected of having committed the offence will be found in Canada.

Limited forms of assistance are available to countries that are not parties to mutual legal assistance treaties with Canada. Non-treaty countries must use the letters rogatory process, whereby a judge, court or tribunal in the requesting country issues a request, to obtain evidence in Canada.

Extradition requests are governed by the Extradition Act, international treaties and the Charter. An extradition request must be approved by the Department of Justice, a judge of the Superior Court and the Minister of Justice. A similar process is used when Canadian authorities request the extradition of a person from another state to Canada.

In the competition context, the Bureau is responsible for investigating conduct that may contravene the Competition Act. Where the Bureau identifies evidence of a criminal offence, the matter may be referred to the Director of Public Prosecutions, who has the discretion to prosecute. The Bureau’s role is to provide responsible and informed recommendations to the Director of Public Prosecutions, which will consult with the Bureau and give due recommendation to its recommendations. That said, the Director of Public Prosecutions retains the discretion to accept or reject the Bureau’s recommendations.

In September 2018, Canada enacted legislation allowing for remediation agreements (akin to deferred prosecution agreements) in relation to certain economic crimes committed by corporations and other specified types of organisation.

If a remediation agreement is determined to be in the public interest and the relevant Attorney General consents, the Crown may enter into such negotiations, considering several factors. These factors include the “nature and gravity” of the alleged offence; whether the organisation has taken steps internally to prevent further misconduct; and whether it has co-operated with the authorities and made reparations for the harm it has caused.

Applicable offences include fraud, bribery, secret commissions, money laundering and certain offences under the CFPOA. Such agreements are also subject to approval of the Court, which will consider, inter alia, reparations for victims, community impact and whether the terms are determined to be “fair, reasonable and proportionate to the gravity of the offence”.

All provinces and territories within Canada operate under the common law, except for Quebec, which applies a combination of civil law and common law. However, Canadian criminal law is governed largely by the federal Criminal Code. There are also numerous municipal, provincial and federal regulatory regimes that sanction corporate misconduct and have criminal or quasi-criminal powers. However, for the present purposes, the focus of this section is on corporate criminal liability as set out in the Criminal Code and the CFPOA.

Under the Criminal Code and the CFPOA, some of the key provisions pertaining to corporate criminal liability include the following.

• Negligence – offences of negligence – organisations (Criminal Code, Section 22.1); duties tending to the preservation of life; duty of persons directing work (Criminal Code, Section 217.1) if done with criminal negligence (Criminal Code, Sections 219 and 220, 221 or 222).
• Offence that requires fault (other than negligence); other offences – organisations (Criminal Code, Section 22.2).
• Theft – theft by or from person having special property or interest (Criminal Code, Section 328(e)).
• False pretences – false pretence or false statement (Criminal Code, Sections 362(1)(c), (d)).
• Forfeiture – person deemed absconded (Criminal Code, Section 462.38(3)(b)); money laundering (Criminal Code, Section 462.31).
• Public stores – selling defective stores to Her Majesty; offences by representatives (Criminal Code, Section 418(2)).
• Bribery, corruption and inappropriately influencing public and municipal officials – bribery of officers (including judicial officers) (Criminal Code, Sections 119, 120); frauds on the government (Criminal Code, Section 121); breach of trust by public officer (Criminal Code, Section 122); municipal corruption (Criminal Code, Section 123); selling or purchasing office (Criminal Code, Section 124); influencing or negotiating appointments or dealing in offices (Criminal Code, Section 125); bribing a foreign public official (CFPOA, Section 3); accounting (CFPOA, Section 4); offence committed outside Canada (CFPOA, Section 5); secret Commissions (Criminal Code, Section 426).
• Threats and retaliation against employees (Criminal Code, Section 425.1).
• Fraud (Criminal Code, Section 380); fraudulent manipulation of stock exchange (Criminal Code, Section 380(2)); insider trading (Criminal Code, Section 382.1(1)); tipping (Criminal Code, Section 382.1(2)) and making a false prospectus (Criminal Code, Section 400).

Domestic Offences

Under the Criminal Code, it is an offence to:

• give or offer any loan, reward, advantage or benefit of any kind to public officials (or their family members) for co-operation, assistance, exercise of influence or an act or omission in connection with any government business;
• bribe any municipal official, officer or judicial officer; or
• provide a “secret commission” to the agent of a principal, including giving or offering a reward, advantage or benefit as consideration for doing or not doing anything related to the affairs or business of an agent’s principal, or demanding, accepting or offering to accept such a reward, advantage or benefit, or otherwise knowingly being privy to a secret commission.

Offences with respect to public officials and secret commissions are subject to fines and/or imprisonment for up to five years, while offences with respect to officers and judicial officers may be liable to fines and/or imprisonment for up to 14 years. Corporate liability can arise where an offence is committed with the knowledge or direction of a “senior officer”, which has been held to include individuals responsible for managing an important aspect of the activities of a business and is not limited to senior management.

Quebec, the only province that broadly addresses bribery at a provincial level through its Anti-Corruption Act, establishes various offences pertaining to corruption, breach of trust, malfeasance, collusion, fraud and influence peddling in the public sector and in the administration of justice; the misuse of public funds; and the gross mismanagement of public contracts (Section 2). The statute provides a number of penalties associated with hindering investigations and reprisals against whistle-blowers.

Under the federal Lobbying Act and similar provincial legislation, lobbyists are required to register and report on their activities. Registration is required for both in-house lobbyists (ie, employees) and consultant lobbyists who, for payment, act on behalf of clients. Lobbying is defined broadly to include communicating with public office holders in an attempt to influence their decisions. For consultant lobbyists, “lobbying” includes arranging a meeting between a public office holder and any other person. Under the federal law, penalties include a fine of up to CAD200,000 and/or imprisonment for up to two years. In July 2023, the federal government introduced a new Lobbyists’ Code of Conduct, updating the 2015 rules to include new rules and limits on gifts and hospitality and conflicts of interest (ie, creating a sense of obligation related to close relationships and political work).

Pursuant to the federal Conflict of Interest Act, it is an offence for a public official to receive any gift or other advantage that might reasonably be seen to have been given to influence the exercise of an official power, duty or function, or to benefit from public contracts, including through an interest held in a partnership or corporation, or to use a position to seek to influence a decision to further the official’s private interests. A public official found to have committed such offences may be subject to a penalty based on the gravity of the offence.

The Canada Elections Act also prohibits federal political candidates from accepting any gift or advantage (excluding political contributions within regulated limits) that might reasonably be seen to have been given to influence them in their duties and functions if elected.

Foreign Offences: The CFPOA

Foreign bribery is governed by the CFPOA, which applies to all Canadian citizens, permanent residents of Canada and persons anywhere whose acts or omissions have been committed in Canada, as well as to organisations incorporated or formed in Canada. Under the CFPOA, it is an offence to:

• give or offer a loan, reward, advantage or benefit of any kind to a foreign (non-Canadian) public official, or to any person for the benefit of a foreign public official as consideration for an act or omission by the official in connection with the performance of the official’s duties/functions; or
• induce the official to use their position to influence any acts or decisions of the foreign state or public international organisation for which the official performs duties or functions.

Penalties under the CFPOA include imprisonment for up to 14 years and unlimited fines for corporate offenders.

In late 2022, the first remediation agreement (akin to deferred prosecution agreements) was entered into with respect to charges under the CFPOA against Ultra Electronic Forensic Technology Inc, which will serve as an important precedent for future non-trial resolutions in trans-national bribery cases.

Canadian anti-bribery legislation does not impose a specific obligation to prevent bribery or influence peddling, or to maintain a compliance programme. However, there has been some pressure from non-governmental organisations for Parliament to consider implementing a positive obligation to prevent bribery, and given the potential consequences arising from violations, adopting an effective compliance programme is increasingly standard industry practice.

Provincial and territorial securities laws generally prohibit persons in a “special relationship” with an issuer from trading the issuer’s securities, if that person is in possession of material non-public information, or from informing any other person of the material non-public information except in the necessary course of business. Provincial securities legislation also addresses market abuses, including matters related to misleading representations, misleading statements, and market manipulation.

While penalties vary from province to province, individuals and corporations found guilty of insider dealing and market abuses are liable to fines of up to CAD5 million (and in certain cases, triple the amount of profit made or loss avoided) and/or up to five years less a day’s imprisonment, and may also be liable for administrative monetary penalties, trading bans and disgorgement orders. Certain provinces also provide for an individual right of action for damages for certain offences.

The federal Criminal Code also prohibits insider trading, including directly or indirectly buying or selling a security while knowingly using inside information obtained in a defined manner that has not been generally disclosed and that could reasonably be expected to significantly affect the market price or value of a security; or conveying such inside information (“tipping”). A person found guilty of insider trading is liable to imprisonment for up to ten years, while conveying inside information is subject to imprisonment for up to five years (Section 382.1).

The federal Income Tax Act prohibits tax evasion, including failing to report foreign property, reporting less income than actually earned, deducting amounts that are higher than allowed, making false or deceptive statements/entries in a tax return/records, destroying or altering records to evade tax and selling/promoting unregistered “tax shelters”.

If prosecuted as a criminal offence (which generally requires an intent to evade tax), tax evasion is subject to a fine of not less than 50% (100% for certain offences related to tax shelters), and not more than 200% (eg, of the tax sought to be evaded), or this same fine and imprisonment for up to two years (Income Tax Act, Section 239).

Tax evasion constituting fraud under the Criminal Code may be subject to imprisonment for up to 14 years. Directors/officers may be held criminally liable for participating/acquiescing in a company’s tax evasion. Canada has a voluntary disclosure programme, under which a taxpayer may be relieved of criminal prosecution if the taxpayer voluntarily discloses tax evasion.

The Criminal Code broadly governs offences related to record-keeping, and prohibits:

• the use, trafficking or possession of forged documents (Section 368);
• the falsification of books and documents, including through alteration, falsification, destruction and/or omissions with the intent to defraud (Section 397); and
• the circulation or publishing of a false prospectus, a statement or an account with the intent to induce, deceive or defraud (Section 400).

Persons found guilty of falsifying books and documents, including financial records, are subject to imprisonment for up to five years, while those found guilty of publishing falsified financial documents and using, trafficking or possessing forged documents are subject to up to ten years’ imprisonment.

The CFPOA also prohibits the falsification and/or destruction of books and records, the omission of records, and the use of knowingly false documents for the purpose of bribing a foreign public official in order to obtain or retain an advantage or for the purpose of hiding that bribery. Persons found guilty are liable to imprisonment for up to 14 years.

Additionally, federal and provincial corporate laws provide for record-keeping requirements. Numerous provincial corporate laws prohibit the misrepresentation of information on financial statements and impose a duty on corporations to guard against falsification of records. Fines vary on a province-by-province basis. For example, in Ontario, individuals found guilty of such offences may be subject to a fine of up to CAD2,000 and/or imprisonment for up to one year, while corporations are subject to a fine of up to CAD25,000.

Similarly, the federal Canada Business Corporations Act prohibits directors and officers from knowingly recording, authorising or permitting the recording of false or misleading information, subject to a fine of up to CAD200,000 and/or imprisonment for up to six months.

Cartel agreements may be pursued under either a criminal or civil track, with agreements that constitute a “naked restraint” on competition most likely to be pursued under the criminal track. The main criminal cartel offences are agreements or arrangements to fix prices; allocate sales, territories, customers or markets or restrict output; and rig bids. Effective 23 June 2023, wage-fixing agreements and no-poach agreements between unaffiliated employers have also been criminalised. Under the criminal track, these agreements are per se illegal – ie, there is no requirement to prove that the agreement has anti-competitive effects in the relevant market.

Corporations and individuals found guilty of cartel conduct may be subject to a fine at the discretion of the court; individuals may also be subject to imprisonment for up to 14 years. As of 23 June 2024, legislative amendments removed the maximum per-count fine, previously capped at CAD25 million.

Bid-rigging is already subject to a fine at the discretion of the court for both individuals and corporations; individuals may also face up to 14 years in prison.

The Competition Act also permits private parties to bring civil claims for single damages resulting from criminal breaches (or alleged breaches), which are typically brought by way of class actions.

Agreements between competitors not pursued under the criminal track may be subject to civil review and administrative enforcement where they are likely to prevent or lessen competition substantially. Effective 15 December 2024, the civil agreements provision will be expanded to capture non-horizontal agreements where a significant purpose of the agreement is to harm competition.

Agreements that are determined to be outside of the civil provision may be subject to a prohibition order for the conduct, and effective 20 June 2024, may be subject to an order requiring parties to take actions necessary to restore competition or an order imposing fines of up to the greater of (i) CAD10 million for each offence (CAD15 million for each subsequent offence) and (ii) three times the value of the benefit derived from the agreement (or if that amount cannot be reasonably determined, 3% of the person’s annual worldwide gross revenues).

Effective 20 June 2025, private parties will be permitted to bring private actions, individually or in a new form of class proceeding, for civil agreements before the Competition Tribunal (previously only the Bureau was permitted to do so). Private parties will also be permitted seek a disgorgement remedy.

Civil matters that are resolved by consent agreement or order of the Competition Tribunal can attract criminal penalties if a civil order is subsequently contravened, including a fine at the discretion of the court (and/or imprisonment for up to five years for individuals).

The Competition Act prohibits misleading representations and a wide range of deceptive marketing practices, which may generally result in either criminal or civil penalties. These include false or misleading representations to the public, deceptive telemarketing, deceptive prize notices, deceptive pricing practices, pyramid selling schemes and various more specific practices subject to civil sanction. Legislative amendments adopted in 2022 explicitly recognised drip pricing as a form of both civil and criminal false or misleading advertising and were further strengthened by legislative amendments in 2024.

Effective 20 June 2024, the civil false and misleading representations deceptive marketing provision was expanded to explicitly include “greenwashing” claims. Claims about the environmental benefits of a product must now be supported by adequate and proper testing, and claims about the environmental benefits of a business or business activity must be based on adequate and proper substantiation in accordance with an internationally recognised methodology.

Criminal offences are punishable by a fine at the discretion of the court and/or imprisonment for up to 14 years. Civil provisions carry significant administrative monetary penalties for corporations of the greater of CAD10 million (CAD15 million for repeat conduct) and three times the value of the benefit obtained from the deceptive conduct, or, if this amount cannot be reasonably determined, 3% of the corporation’s annual worldwide gross revenues. As noted in the foregoing, violation of a civil order can result in criminal sanctions.

Effective 20 June 2025, private parties will be permitted to bring private actions for civil deceptive marketing before the Competition Tribunal (previously only the Bureau was permitted to do so). Private parties will only be able to obtain leave from the Competition Tribunal to bring such a private action where it is established that this is in the public interest.

In Canada, criminal matters related to the commission of cybercrimes, computer fraud and the protection of company secrets are primarily dealt with under the Criminal Code. The Criminal Code criminalises various cybercrime offences, including the following.

• Mischief in relation to computer data is an offence under the Criminal Code that can encompass a wide variety of cybercrimes, from hacking to ransomware attacks. A person commits the offence of mischief if they wilfully (i) obstruct, interrupt or interfere with the lawful use of computer data, or with a person in the lawful use of computer data, or deny access to computer data to a person who is entitled to access it; (ii) destroy or alter computer data; or (iii) render the computer data meaningless, useless or ineffective. A punishment of imprisonment for up to ten years is available by indictment but may rise to the level of life imprisonment if the mischief causes actual danger to life (Section 430(1.1)).
• The importation, possession, sale, distribution or making available of a device designed or adapted to obtain unauthorised use of a computer system or to commit mischief is punishable by imprisonment for up to two years (Section 342.2).
• In Canada, the Criminal Code does not differentiate between the mediums through which identity theft or fraud can occur. Thus, identity theft and fraud perpetrated online or through a computer fall under the regular criminal identity theft and fraud provisions. Someone who obtains or possesses another individual’s identity information with the intention of using it to carry out a crime involving fraud, deceit or falsehood is committing an offence, regardless of whether it is done online or not. A punishment of imprisonment for up to five years is available by indictment (Section 402.2). Someone who fraudulently impersonates another person, living or dead, with the intent to gain an advantage, obtain property, cause disadvantage or obstruct justice is guilty of fraud, punishable for up to ten years in prison (Section 403).
• Although civil in nature, Canada’s Anti-Spam Legislation (CASL) prohibits the unauthorised installation of a computer programme on another person’s computer system and unsolicited commercial electronic messages (CEMs). CASL violations may be subject to substantial administrative monetary penalties of up to CAD10 million per violation for corporations. In some instances, however, CEMs can rise to the level of criminality where the substance of the CEMs amounts to fraud under the Criminal Code. Anyone who, by fraudulent means, defrauds another of any property, money, valuable security or service is guilty of fraud, punishable by up to 14 years in prison (Section 380).

The federal government introduced Bill C-26, An Act Respecting Cyber Security (ARCS), in June 2022. The proposed legislation is intended to bolster cybersecurity in the financial, telecommunications, energy and transportation sectors. The proposed legislation is currently undergoing second reading in the Canadian Senate. If passed, it would introduce amendments to the Telecommunications Act and Canada Evidence Act. The ARCS would also introduce the new Critical Cyber Systems Protection Act (CCSPA), which is aimed at securing Canada’s critical infrastructure against cyberthreats.

The United Nations Act (the “UN Act”) allows the Canadian government to give effect to any measure adopted by the United Nations Security Council, including through the imposition of economic and trade sanctions. Persons contravening any order or regulation made under the statute may be subject to a fine of up to CAD100,000 and/or imprisonment for up to one year.

Non-multilateral trade and economic sanctions may be given effect under the Special Economic Measures Act (SEMA) or the Justice for Victims of Corrupt Foreign Officials Act (Sergei Magnitsky Law). Persons wilfully contravening any sanctions enacted by these statutes may be subject to a fine of up to CAD25,000 and/or imprisonment for up to one year.

The Criminal Code prescribes measures intended to prohibit and punish certain activities involving organisations or persons associated with terrorism and related activities.

The Freezing Assets of Corrupt Foreign Officials Act allows the assets and property of foreign politically exposed persons to be frozen or restrained. Persons who contravene the measures enacted under the Freezing Assets of Corrupt Foreign Officials Act may be subject to fines of up to CAD25,000 and/or imprisonment for up to five years.

Contraventions of the Customs Act and related customs statutes and regulations may be subject to civil and/or criminal penalties. The Administrative Monetary Penalties System (AMPS) is a graduated civil monetary penalty system that applies to certain contraventions of the Customs Act and related customs/trade statutes. Penalty amounts under AMPS vary depending on the contravention. Civil penalties may also take the form of seizures and ascertained forfeitures. Criminal offences pursuant to the Customs Act are punishable by fines of up to CAD500,000 and/or imprisonment of up to five years.

Persons exporting goods or technologies from Canada in contravention of the federal Export and Import Permits Act may be subject to a fine that is determined at the court’s discretion and/or to imprisonment for a term not exceeding ten years.

The federal Proceeds of Crime (Money Laundering) and Terrorist Financing Act (PCMLTFA) was recently amended to require reporting entities to report when they have reasonable grounds to suspect that a transaction or suspected transaction is related to a “sanctions evasion offence”, defined as an offence arising from the contravention of a restriction or prohibition established by an order or a regulation made under the UN Act, SEMA or the Sergei Magnitsky Law. The PCMLTFA was also amended to require importers, exporters and those persons financing import/export transactions to declare whether goods being imported or exported are related to sanctions evasion; however, these amendments are not yet in force.

Under the Criminal Code, fraudulent concealment – ie, fraudulently taking, obtaining, removing or concealing anything – is punishable by up to two years’ imprisonment (Section 341). There is no required predicate offence.

Pursuant to Section 21 of the Criminal Code, a person found to have done or omitted to do anything for the purpose of or aiding in the execution of a crime, or who encourages, promotes or instigates a crime to be committed, will be found to have aided or abetted in that crime and will be considered a party to the offence. They will be subject to the same consequences and potential penalties as a person who actually committed the offence.

It is an offence under the Criminal Code to engage in money laundering. To establish the offence, a person must have (i) laundered property or any proceeds of any property, in any manner and by any means, (ii) with the intent to conceal or convert that property or those proceeds, (iii) knowing or believing that, or being reckless as to whether, all or a part of that property or of those proceeds was obtained or derived directly or indirectly as a result of an offence in Canada (or one occurring outside Canada that, if it occurred in Canada, would constitute an offence).

However, the Criminal Code was recently amended, such that when an accused is not charged with the underlying designated offence, a court can infer that an accused meets the knowledge requirement if satisfied that “the manner in which the accused dealt with the property or its proceeds is markedly unusual or the accused’s dealings are inconsistent with lawful activities typical of the sector in which they take place, including business activities”. In addition to this amendment, the Criminal Code now provides expanded investigative tools to assist enforcement agencies’ ability to conduct investigations, such as providing authority for courts to order financial institutions to keep client accounts open, to issue repeating production orders and to grant production orders for financial data tied to digital assets.

Money laundering is punishable by imprisonment for up to ten years. Additionally, courts may also order the forfeiture of certain property.

In addition, the federal PCMLTFA imposes obligations on financial institutions and certain other businesses to prevent money laundering, terrorist financing and sanctions evasion through record-keeping, identity verification and ongoing monitoring and reporting, as well as through anti-money laundering compliance programmes. The PCMLTFA is enforced by the Financial Transactions and Reports Analysis Centre of Canada (FINTRAC), the federal financial intelligence agency. The federal government has committed funds to studying and eventually establishing a Canada Financial Crimes Agency, which will be responsible for investigation and enforcing complex financial crimes, including money laundering. This proposed new agency’s official mandate, and how it will collaborate with FINTRAC, remains unclear.

The PCMLTFA and its regulations have seen significant amendments in recent years, including the expansion of reporting requirements to new entities and industries, the regulation of virtual currencies and the expansion of information sharing by FINTRAC with other government agencies to enhance enforcement.

In addition to the obligations noted in the foregoing for importers and exporters and those financing these transactions, there are additional obligations under the PCMLTFA requiring a declaration to a Canada Border Services Agency officer when goods being imported or exported are proceeds of crime, or are related to money laundering or the financing of terrorist activities.

Persons found in contravention of the PCMLTFA may be subject to a fine of up to CAD500,000 and/or imprisonment for up to five years, or an administrative monetary penalty of up to CAD100,000 for individuals or up to CAD500,000 for organisations, for most offences. Parties may be offered the opportunity to enter into a formal compliance agreement with FINTRAC in exchange for a reduced penalty.

General defences available under Canadian criminal law, including duress and necessity, are applicable to white-collar offences. While not strictly a defence, criminal liability may also be avoided where the accused demonstrates that the Crown has not proven an element of the offence.

Similarly, defences based on the Canadian Charter of Rights and Freedoms may be available – for example, where evidence was obtained through unreasonable search and seizure, such evidence can be excluded. Criminal proceedings may also be stayed as an abuse of process in instances of entrapment. In addition to these more general defences, a wide range of specific statutory defences exist under Canadian law.

The Competition Act establishes a number of limited defences to a charge of conspiracy. These are:

• the ancillary restraint defence, whereby parties that have been charged with conspiracy will not be convicted if the agreement or arrangement in question is directly related to, and reasonably necessary for, giving effect to a broader or separate agreement that is not itself illegal;
• the regulated conduct defence, whereby actions that are authorised or carried out pursuant to federal or provincial legislation may be exempt from prosecution in certain circumstances; and
• the export cartels defence, whereby agreements or arrangements that relate only to the export of products from Canada are exempt from prosecution, provided they meet certain conditions related to the enhancement of export trade.

Parties subject to a bid-rigging offence may invoke the disclosure defence – that is, that all communications and arrangements with other bidders have been disclosed to the person calling for or requesting the bid, while parties alleged to have engaged in misleading advertising or violated certain other consumer criminal laws may rely on a due diligence defence.

Under provincial securities legislation, an accused may establish a defence to insider trading or tipping if the individual reasonably believed that the material information had been generally disclosed. An accused may also establish a defence to tipping when the information was provided in the necessary course of business.

The CFPOA sets out certain defences for bribery of foreign public officials. An accused may establish a defence where: (i) the benefit given is permitted or required under the laws of the foreign state or public international organisation for which the foreign public official performs duties or functions; or (ii) the benefit was given to pay reasonable expenses incurred in good faith by or on behalf of the foreign public official that are related to the promotion of the accused’s products and services or the performance of a contract between the person and the foreign state.

Canadian money laundering offences require proof of intent and knowledge. However, in certain circumstances an accused’s recklessness may also satisfy the knowledge requirement. For reporting offences under the PCMLTFA, a due diligence defence is available.

No industries or sectors are exempt from Canadian white-collar criminal liability. However, the Competition Act exempts affiliated companies from prosecution under the conspiracy provisions (eg, affiliates may agree not to hire one another’s employees).

No de minimis exceptions exist under statutes relating to white-collar offences. However, Crown prosecutors and regulators have discretion to refrain from bringing charges and may do so where the amount at issue is negligible. Similarly, mitigating factors to the offence may play a role in sentencing.

While co-operation and self-disclosure may be mitigating factors in sentencing (or in the determination of penalty), these steps will not typically relieve a party of criminal or regulatory liability.

As discussed in the foregoing, Canada has recently enacted a deferred prosecution regime that allows a corporate accused to enter into a remediation agreement with the Crown. Self-disclosure and co-operation are factors that may be considered by the Attorney General in deciding whether to offer an accused a remediation agreement. In the context of bribery charges under the CFPOA, self-disclosure and co-operation have been considered in negotiating a plea agreement, and would also be considered on sentencing.

Parties implicated in conduct that violates the criminal provisions of the Competition Act may co-operate with the Bureau in exchange for immunity from prosecution. However, in order to qualify for immunity, a party must either be the first to disclose an offence not yet detected, or be the first party to come forward before there is sufficient evidence to commence a prosecution.

Parties that are implicated in conduct that violates the Competition Act and that do not qualify for immunity may apply for leniency in prosecution, but must plead guilty to an offence under the Act and provide full co-operation.

The Bureau and other regulators and prosecutors assess a range of aggravating factors when considering requests for leniency, including whether the offender has abused a position of trust or authority in relation to the victim and whether the offence had a significant impact on the victim, as well as considering any mitigating factors. Corporate offenders can also receive credit for credible and effective compliance programmes. Disclosure of evidence of conduct constituting a further criminal offence unknown to the authorities can also attract leniency.

No comprehensive whistle-blower legislation exists in Canada. However, there are some specific protections in place.

The Criminal Code prohibits employers or their agents from:

• threatening an employee to prevent that employee from providing information to law enforcement; or
• retaliating against an employee who has provided information to law enforcement.

Provincial whistle-blower protections in securities legislation are in place, but are inconsistent – some provinces (ie, Alberta, Manitoba, Saskatchewan, New Brunswick and Ontario) have enacted protections, while others have yet to legislate formal protections. Provincial securities regulators, including the Ontario Securities Commission, have also implemented incentive programmes for whistle-blowers.

The Canada Revenue Agency offers financial incentives for whistle-blowers who provide information regarding international non-compliance of Canadian taxpayers.

Federal public sector employers are required to create a code of conduct protecting whistle-blowers under Canada’s Public Servants Disclosure Protection Act. Similar provincial legislation exists in certain provinces.

Under the Competition Act, any person may notify the Bureau of an offence and request that their identity be kept confidential. Employers are prohibited from retaliating against whistle-blower employees who act in good faith, and on the basis of a reasonable belief, through dismissing, suspending, demoting, disciplining, harassing or otherwise disadvantaging an employee or denying an employee a benefit of employment.

The Private Members’ Bill C-290, an Act to amend the Public Servants Disclosure Protection Act, was introduced in Parliament in June 2022 and is now being considered by the Standing Committee on Government Operations and Estimates. The bill aims to strengthen whistle-blower protections for public servants in Canada.