Update: Canada Tackles Foreign Corruption and Bribery with Amendments to the Corruption of Foreign Officials Act

Davis LLP International Corporate Governance Bulletin


Canada has recently enacted amendments to the Corruption of Foreign Public Officials Act (the “Act”), which may suggest a renewed vigour for taking action against Canadian agents of foreign corruption.

On February 5, 2013, Bill S-14 (the “Bill’) was introduced into the Senate to amend the Act. On June 19, 2013, the Bill received Royal Assent, and these amendments were enacted into law.

The Bill’s enactment has amended the Act in five key ways.

First, the amendments have raised the maximum custodial sentence for offences under the Act from five to fourteen years.

Second, the amendments have introduced a series of new offences targeting business records. These new offences criminalize any of the following activities when done for the purpose of enabling the bribery of foreign public officials:

  • Keeping a second set of books outside of what records are legally required;
  • Making false records of transactions in the relevant corporate records, or failing to record actual transactions;
  • Incorrectly identifying liabilities in the corporate records;
  • Knowingly using false documents; and
  • Intentionally destroying accounting books and records earlier than permitted by law.

Third, the amendments have broadened the jurisdiction of the Canadian Courts under the Act. Prior to the amendments, Canadian Courts had jurisdiction if there was a “real and substantial” link between the offence and Canada. The amendments have replaced this “real and substantial” test with a “nationality jurisdiction”, which gives Canadian Courts jurisdiction over all persons or companies with Canadian nationality, regardless of where the alleged offence has taken place.

Fourth, the amendments are scheduled to eliminate the defence of “facilitation payments”, but this particular amendment has not been proclaimed into force, and there is as yet no scheduled time for this to occur. The defence of facilitation payments permits payments to public officials who are acting in the ordinary course of their jobs. In contrast to the potential elimination of facilitation payments in Canada, UK authorities are in the early stages of discussions to add a defence for facilitation payments to the UK Bribery Act 2010.

Fifth, the amendments will expand the application of the Act to include non-profit organizations and charities. Previously, the Act only applied to “for profit” organizations.

For further information, please see our previous publication detailing the introduction of Bill S-14, Canada Tackles Foreign Corruption and Bribery with Bill S-14, which provides a detailed analysis of the impact of these amendments.

 

This publication is intended to provide our general comments on developments in the law. It is not intended to be a comprehensive review nor is it intended to provide legal advice. Readers should not act on information in the publication without first seeking specific advice on the particular matter. The firm will be pleased to provide additional details or discuss how this information is relevant to a specific situation.
 

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