This chapter addresses the legislative framework and enforcement trends with respect to domestic and foreign bribery laws in Canada. In Canada, domestic bribery and corruption offences are set out in the Criminal Code,2 while foreign bribery offences are set out in the Corruption of Foreign Public Officials Act (CFPOA).3 Since 2017, the federal government of Canada has undertaken several changes that may alter the enforcement environment in Canada, including the introduction of a Canadian deferred prosecution agreement regime (known as a remediation agreement regime), the repeal of the facilitation payment exemption under the CFPOA, and forthcoming changes to Canada's debarment regime (the Integrity Regime). Since late 2018, Canadian authorities have also advanced Canada's enforcement of domestic and foreign bribery laws by obtaining convictions and prison sentences in several bribery prosecutions against corporate executives. Corruption enforcement has been a recurring theme in the Canadian press throughout 2019 as a result of the Director of Public Prosecutions' refusal to enter into a remediation agreement with a prominent Canadian company accused of foreign bribery, and the reaction of the Prime Minister's Office to that decision.
While enforcement of Canadian bribery and corruption laws has historically lagged behind its southern neighbours, these recent legislative trends and convictions show that enforcement in Canada is maturing. These developments must be contrasted against complications facing Canada's attempts to implement a modernised approach to enforcement, as shown by the recent public and political debate about the appropriate use of remediation agreements.
II DOMESTIC BRIBERY: LEGAL FRAMEWORK
Sections 121 to 123 of the Criminal Code prohibit the improper provision of benefits to Canadian government officials and employees. Section 426 of the Criminal Code criminalises private-sector bribery.
i Offences involving bribery and corruption of Canadian government officials
Section 121(1)(a) of the Criminal Code prohibits the offering or giving of a benefit to a federal or provincial government official, or any member of his or her family, that creates a quid pro quo arrangement. An official that accepts such a benefit also commits an offence under this section. The purpose of this Section is to prevent exchanging benefits for influence in government and deter overt forms of domestic corruption.
Section 121(1)(b) prohibits giving a benefit to a federal or provincial government official in the course of business dealings between an accused and government. Section 121(1)(c) criminalises the receipt of such a benefit. The purpose of Sections 121(1)(b) and (c) is to preserve the appearance of integrity, rather than integrity itself. Unlike Section 121(1)(a), these offences do not require a quid pro quo arrangement. Also, written pre-approval from the head of the branch of government conducting business with an accused is a complete defence to Section 121(b) and (c) offences.
For the purpose of Sections 121(1)(a) through (c), government officials include employees or officials of: (1) federal and provincial governments; (2) government-controlled corporations; and (3) municipalities acting as agents of the federal or provincial crown.
Section 122 of the Criminal Code prohibits corruption of public officials in positions of trust. This Section criminalises using a public office for a purpose other than the public good if the misconduct arises to a serious and marked departure from the standard of responsibility and conduct expected of an individual in the accused's position of public trust. Under this section, public officials are not limited to federal or provincial government officials and include any person in a position of duty, trust, or authority, particularly if that person is in a corporation or the public service. Canadian courts have held that officials of First Nations bands are public officials for the purpose of Section 122.4
Section 123 of the Criminal Code functions the same way as Section 121(1)(a), but applies to municipal government officials.
ii What constitutes a benefit under the Criminal Code
Domestic bribery offences under the Criminal Code capture more than cash payments. Sections 121 and 123 of the Criminal Code each prohibit the payment or receipt of a 'loan, commission, reward, advantage, or benefit of any kind.' In R v. Hinchey,5 the Supreme Court of Canada defined a 'benefit' under the Criminal Code as anything that amounts to a 'material or tangible gain'. The Supreme Court also set out factors to determine whether something is a 'material or tangible gain', including the: (1) relationship between the parties; (2) history of reciprocal arrangements between the parties; and (3) size or scope of the benefit.6 Other Canadian courts have expanded these factors to include, in part, the: (1) manner in which the gift was bestowed; (2) nature of the provider's dealings with government; and (3) state of mind of the provider and receiver.7
Canadian courts have not identified a specific value threshold for what constitutes a benefit, but have identified specific items that do, or do not, constitute 'material or tangible gains'. Canadian courts have found that hockey tickets,8 extravagant meals, gift cards over C$500, and payment for travel represent a material gain, but items such as infrequent and moderately priced meals, coffee, and low value promotional items do not.
iii Private corruption
Section 426 of the Criminal Code criminalises the provision or receipt of secret payments or benefits to or by an agent, including an employee, as consideration for actions related to the affairs or business of an agent's principal, including an employer. There are two separate offences contained in Section 426: (1) a donor offence, committed by a third party providing a benefit; and (2) an agent/recipient offence, committed by an agent receiving a benefit. These offences can be committed independently and do not require the donor and recipient to act in concert. Secrecy is a crucial element for this offence. There is no offence if an agent makes adequate and timely disclosure of the benefit to his or her principal.
iv Organisational liability
Pursuant to Section 22.2 of the Criminal Code, Canadian organisations can be party to offences committed by their 'senior officers' if the senior officer intended, in part, to benefit the organisation by committing the offence. An organisation can also be criminally liable if a senior officer: (1) commits an offence themselves; (2) directs other representatives of the organisation to commit an offence; or (3) fails to take all reasonable steps to prevent another representative of the organisation from committing an offence the senior officer knew would be committed.
A 'senior officer' is defined broadly by the Criminal Code and includes any representative that plays an important role establishing an organisation's policies or manages an important aspect of the organisation's activities, including directors, chief executive officers, and chief financial officers.9 Canadian courts have found that even a general manager can be considered a 'senior officer' and create criminal liability for an organisation.10
v Liability of directors, officers, and employees
Under Section 21 of the Criminal Code, an organisation's directors, officers or employees may be charged as a party to an offence that the organisation itself has been charged with. A party to an offence under the Criminal Code includes anyone that commits an offence, or assists or encourages the commission of an offence. There is no strict or automatic liability for directors, officers or employees of organisations guilty of bribery. Instead, directors, officers or employees will only be guilty of a bribery offence committed by the organisation if they participated in or encouraged the commission of it.
Conviction under Sections 121 through 123, and 426 of the Criminal Code are punishable by up to five years in prison for individuals and unlimited fines for organisations. There are no limitation periods for indictable offences in Canada11 and an accused can be charged for numerous offences related to a single act. Further, the Criminal Code prohibits the retention of proceeds of crime and a convicted organisation may be ordered to forfeit all proceeds – not just profits – related to a conviction.
III ENFORCEMENT: DOMESTIC BRIBERY
Historically, there was limited enforcement of Sections 121 through 123 and 426 of the Criminal Code. In concert with a global effort to decrease bribery and corruption, Canadian enforcement authorities have increased enforcement of Canada's domestic bribery offences. Some examples include:
i Michael Applebaum
In March 2017, Michael Applebaum, the interim mayor of Montreal, was convicted of violating several sections of the Criminal Code, including Sections 121(1)(a), 122 and 123 for accepting payments from real estate developers and engineering firms in return for favours and political influence while mayor of a central borough in Montreal. Mr Applebaum was sentenced to one year in prison and two years' probation.
ii Michel Fournier
In August 2017, Michel Fournier, former head of Canada's Federal Bridge Corporation, pleaded guilty to accepting more than C$2.3 million in payments from a Canadian engineering firm in connection with the Jacques Cartier Bridge. Fournier was sentenced to five and a half years' imprisonment.
iii Pierre Duhaime
In February 2019, Pierre Duhaime, former CEO of a Canadian engineering firm, pleaded guilty to breach of trust by a public official in violation of Section 122 of the Criminal Code in relation to C$22.5 million of kickbacks paid to obtain construction contracts. Mr Duhaime was sentenced to 20 months of house arrest.
IV FOREIGN BRIBERY: LEGAL FRAMEWORK
Like the United States Foreign Corrupt Practices Act12 (FCPA), the CFPOA criminalises the provision of benefits to foreign public officials in consideration for, or to induce, any act or omission to be undertaken by an official in connection with their duties.13 Benefits provided through, or received by, third-party representatives with the ultimate goal of influencing a foreign public official are also prohibited by the CFPOA.14
Under the CFPOA, a foreign public official includes any person that holds a legislative, administrative or judicial position, or performs a public duty or function for a foreign state.15 This includes employees of foreign boards, commissions or organisations established to perform a duty or function on behalf of a foreign state. The CFPOA is likely to consider employees of state-owned or controlled companies to be foreign public officials.
Prior to amendments to the CFPOA passed in 2013 (the 2013 Amendments), the CFPOA only applied to misconduct with a 'real and substantial' connection to Canada.16 This limited Canada's ability to enforce the CFPOA because some portion of the initiation or commission of the offence had to occur within Canada. The 2013 Amendments deem all acts of Canadian citizens, permanent residents, corporations, societies, firms or partnerships to be acts within Canada for the purposes of the CFPOA.17 As a result, Canadian citizens and companies are subject to worldwide regulation under the CFPOA.
Canadian enforcement authorities can only enforce violations of the CFPOA committed by foreign citizens or entities if Canadian courts have jurisdiction over both the offence and the accused. To have jurisdiction over an offence committed by a foreign accused outside of Canada, the offence must have a 'real and substantial' link to Canada.18 To gain jurisdiction over a foreign accused, a Canadian court must be able to 'lay hands' on him, her or it. Canadian enforcement authorities gain jurisdiction over a foreign accused individual if he or she is subject to extradition or enters Canada. Canadian courts gain jurisdiction over a foreign organisation if its manager, secretary or other senior officer (discussed above), or the manager, secretary or other senior officer of one of its branches, enters Canada.19
Section 3(3) of the CFPOA sets out two defences for bribing a public official: (1) if the benefit provided is permitted or required under the laws of the foreign state or organisation for which the official acts; or (2) if the benefit was provided to pay reasonable expenses incurred in good faith by or on behalf of a foreign public official and the expenses were incurred related to promote products and services at the accused to execute or perform a contract between the accused and the foreign entity the official represents. To rely on this defence, an accused must show the loan, reward, advantage or benefit was a reasonable expense incurred in good faith.
On 31 October 2017, the Canadian government repealed the facilitation payment exemption contained in the CFPOA. As such, facilitation payments are no longer permissible under Canadian law and organisations should consider prohibiting facilitation payments to ensure compliance with both the FCPA and CFPOA.
iv Organisational liability
Section 22.2 of the Criminal Code, discussed in Section II.iv, is applicable to CFPOA offences.
Conviction of bribing a public official under the CFPOA is punishable by up to 14 years' imprisonment for individuals and unlimited fines for organisations.20 Courts can also impose additional, onerous probationary terms on convicted companies, including a third party compliance monitor.
V ASSOCIATED OFFENCES: FINANCIAL Record-keeping AND MONEY LAUNDERING
i CFPOA books and records offence
Pursuant to Section 4 of the CFPOA, it is an offence to establish or maintain secret accounts, make unrecorded transactions, record non-existent expenditures, mislabel liabilities, knowingly use false documents, or intentionally destroy accounting records before the law permits, for the purpose of hiding bribery.
The books and records offence under the CFPOA has had a less significant impact on the Canadian enforcement landscape than its FCPA counterpart because it is enforced criminally, not civilly. The Canadian books and records offence also requires an underlying act of bribery.
ii Money laundering/proceeds of a crime
The Criminal Code and Proceeds of Crime (Money Laundering) and Terrorist Financing Act (PCMLTFA)21 safeguard against money laundering in Canada. The Criminal Code prohibits both the transfer and possession of money or property obtained through the commission of an offence, including bribery and corruption offences under the Criminal Code and CFPOA.22 The PCMLTFA imposes strict regulations on entities, such as financial institutions, that are likely to be used as intermediaries to facilitate money laundering. These regulations include requirements related to record-keeping, client identification, ongoing monitoring, and reporting suspicious transactions.
iii Extractive Sector Transparency Measures Act
The Extractive Sector Transparency Measures Act (ESTMA)23 imposes additional reporting obligations on entities engaged in the commercial development of oil, gas or minerals. Entities engaged in these activities must comply with ESTMA's reporting requirements (Reporting Entities) if they are listed on a stock exchange in Canada, or have a place of business in Canada, do business in Canada, or have assets in Canada, and if they also meet at least two of the following size criteria, in two of their most recent financial years:
- C$20 million in assets;
- C$40 million in revenue; or
- employ an average of at least 250 employees.24
Reporting Entities are required to report payments made to foreign and domestic governments, government-owned or controlled entities, quasi-government entities that exercise a government function, and employees or officials that belong to these organisations.25 As of 1 June 2017, Reporting Entities must also report payments made to indigenous governments in Canada.26 Indigenous governments may include any indigenous group or organisation that exercises or performs a power, duty or function of government, independently or in concert with other groups, such as a band council, chief, treaty association, tribal council or Chief's council.
ESTMA requires payments related to specific categories be reported, such as taxes, royalties, fees (including rental fees, regulatory charges, or fees related to licences, permits and concessions) and bonuses.27 Reporting is only necessary if the total annual payments made in relation to a single category eclipse C$100,000. A director, officer, independent auditor or accountant must attest to the truth, accuracy and completeness of information contained in an ESTMA report.28
Failure to report a required payment is an offence under ESTMA.29 Additionally, an attempt to structure any payment, or other financial obligation, to avoid reporting requirements is an offence under ESTMA.30 Entities and directors otherwise guilty of an offence under ESTMA can avoid conviction by establishing that all reasonably prudent measures were taken to ensure an offence was not committed.
VI ENFORCEMENT: FOREIGN BRIBERY AND ASSOCIATED OFFENCES
i Introduction of the Remediation Regime
In September 2018, amendments to the Criminal Code came into force that allow for and regulate a remediation agreement regime (Remediation Regime) that is substantively similar to the deferred prosecution agreement (DPA) regime in the United Kingdom. The introduction of the Remediation Regime is a significant step in modernising Canadian enforcement for bribery and corruption related offences, and is discussed in Section VIII.
ii Integrity Regime
In 2015, Canada introduced a new Integrity Regime that debars entities associated with corruption-related offences from contracting with the federal government, including mandatory five- to ten-year debarment periods for entities convicted or discharged (or with a board member that has been convicted or discharged) of an offence under Sections 121 and 426 of the Criminal Code and any offence under the CFPOA. Under the Integrity Regime, simply being charged with a corruption-related offence can result in an 18-month debarment period.
In March 2018, Public Services and Procurement Canada announced that the federal government of Canada plans to enhance the Integrity Regime. These proposed enhancements are discussed in Section VIII.
iii Historic enforcement
The CFPOA is enforced by the Royal Canadian Mounted Police (RCMP) and prosecuted by the Public Prosecution Service of Canada. The years 2018 and 2019 have seen an uptick in CFPOA enforcement. Until 2019, Canadian courts had only sentenced one individual to jail time under the CFPOA. In January 2019, Robert Barra, the former CEO of Cryptometrics Inc, and Shailesh Govindia, the company's former agent, were each convicted of bribing a foreign public official contrary to Section 3(1) of the CFPOA for their roles in a conspiracy to bribe an Indian minister in exchange for a contract with a state-owned enterprise, Air India. They were each sentenced to two-and-a-half years' imprisonment.
In addition to being only the second and third individuals sentenced to prison under the CFPOA, these decisions provide useful jurisprudence about the jurisdiction of Canadian courts and the essential elements of CFPOA offences. In R v. Barra and Govindia (Barra),31 the accused, a British national and an American national, applied for a directed verdict for an acquittal in advance of their trial on the basis that Canadian courts lacked jurisdiction over foreign nationals accused of an offence that occurred outside of Canada. Despite the impugned conduct occurring in New York and in India, the Court found that the attendance of Canadian senior management at meetings related to the impugned conduct, as well as the 'fruits of the transaction' related to the bribes being intended for a Canadian company, created a real and substantial link between the offence and Canada and grounded the jurisdiction of a Canadian court.32
Barra is also the first time a Canadian court has expressly held that it is an essential element of an offence under the CFPOA that an accused know, or ought to have known, that the recipient of a bribe is indeed a foreign official.33
Prior to these two convictions, there have been several other significant prosecutions under the CFPOA. Between 2011 and 2013, two oil and gas companies were fined a combined C$19.85 million for improper payments and benefits provided to government officials from Bangladesh and Chad, respectively. Also in 2013, an individual named Nazir Karigar, the first individual incarcerated under the CFPOA, was sentenced to three years' imprisonment for the same bribery conspiracy associated with Barra and Govindia.
In 2012 and 2013, three executives of a Canadian engineering firm, a former Bangladeshi minister, and a Bangladeshi-Canadian citizen were charged with bribery offences under the CFPOA in connection with a contract for consultancy services related to a US$3 million construction project in Bangladesh. In 2014, the prosecution of the former Bangladeshi minister was stayed because he lacked a direct connection to Canada,34 and in 2015, charges against one executive were stayed when he agreed to cooperate with authorities.
The remaining accused were acquitted in 2017 after Justice Nordheimer of the Ontario Superior Court ordered crucial wiretap evidence be excluded based on the Court's view that the wiretap had been improperly authorised.
iv Ongoing investigations
Between 2014 and 2015, a Canadian engineering firm, along with two of its subsidiaries and two of its former executives, was charged with bribery offences under the CFPOA and fraud charges under the Criminal Code. On 9 October 2018 the Canadian Director of Public Prosecutions, Canada's lead federal prosecutor, formally notified this firm that the government would not invite the firm to negotiate a remediation agreement to resolve the charges against it. In response, the firm applied for a judicial review of the Director's decision. On 8 March 2019, the Federal Court struck the application, finding that whether to invite an accused to negotiate a remediation agreement 'clearly falls within the ambit of prosecutorial discretion' and is only subject to judicial review in cases of abuse of process. This decision is under appeal and the firm has been ordered to stand trial in September 2019. A former executive vice-president of the same firm has also been charged with bribing a foreign public official and fraud in connection with the firm's Libyan activities. His prosecution is ongoing.
Dario Berini, who was involved in the Air India bribes but cooperated with prosecutors and testified against Barra and Govindia, was charged in connection with the conspiracy. The resolution of his case is still outstanding.
VII INTERNATIONAL ORGANISATIONS AND AGREEMENTS
i Canada's progress with the OECD Anti-Bribery Convention
On 12 September 2018, Transparency International released its annual Progress Report on the Enforcement of the Organisation for Economic Co-operation and Development (OECD) Anti-Bribery Convention. The Anti-Bribery Convention, of which Canada is a signatory, requires parties to criminalise bribery of foreign public officials and introduce related measures. Its goal is to create a corruption-free, level playing field for global trade. The Anti-Bribery Convention serves as a key instrument for curbing global corruption.
This year, Transparency International's report indicated that Canadian enforcement levels had regressed from 'moderate' to 'limited' because Canadian enforcement authorities had only commenced four foreign bribery prosecutions between 2014 and 2017. According to the report, systemic challenges still hamper the enforcement of white-collar offences in Canada. On Transparency International's scale, 'moderate' and 'limited' enforcement indicate stages of progress but are not considered sufficient deterrence of bribery and corruption.
ii Wallace and the importance of international cooperation
Before the executives discussed above were acquitted by Justice Nordheimer (see Section VI.iii), an accused brought an application in that case to compel records and testimony from the anti-corruption/anti-fraud investigative unit of the World Bank Group, known as the Integrity Vice Presidency of the World Bank (INT). INT had investigated whistle-blower complaints related to the accused and provided the results of that investigation and supporting documents to the RCMP. The RCMP relied upon these materials to obtain a wiretap authorisation, later found to be improper by Justice Nordheimer. The trial judge ordered the documents be produced and INT personnel testify. The World Bank Group appealed.
The Supreme Court unanimously overturned the trial judge's decision holding that the World Bank was protected from being compelled to provide records or testify by multilateral agreements, ratified by Canadian legislation and orders in council.35 Also in Wallace, the Supreme Court affirmed that worldwide cooperation was required to fight corruption, which the court found often transcended borders and was a significant obstacle to international development.
VIII LEGISLATIVE DEVELOPMENTS
i Canada's Remediation Regime
After engaging in public consultations on corporate wrongdoing, PSPC announced that the federal government would amend the Criminal Code to permit and govern the Remediation Regime. Remediation agreements, like DPAs, are agreements between an accused organisation and a prosecutor, whereby a prosecutor agrees to suspend prosecution of an accused in exchange for cooperation and compliance with a number of conditions. The Remediation Regime came into force on 19 September 2018, but is available for offences alleged to have been committed prior to coming into force.
Only prosecutors can initiate a negotiation for a remediation agreement. Before a prosecutor may enter into negotiations with an accused organisation, the prosecutor must be of the opinion that there is a reasonable prospect of conviction for the underlying offence, the offence did not result in serious bodily harm, death or injury, the offence was not committed for or with a criminal organisation or terrorist group, and negotiating a remediation agreement is in the public interest and appropriate in the circumstances.36 The Attorney General must also consent to negotiations.37
A prosecutor must consider certain factors when determining if a remediation agreement is in the public interest and appropriate in the circumstances, including whether an organisation has taken disciplinary action against culpable individuals and whether an organisation has taken remedial action.38 Self-reporting is not required to be eligible for a remediation agreement; however, it is a factor a prosecutor must consider.39
Remediation agreements must include certain terms, including a statement of facts, an admission of responsibility by the accused, and ongoing commitments to identify culpable individuals, cooperate with any resulting investigation, forfeit any benefit obtained from improper conduct, and pay a fine and victim surcharge for each offence.40
Remediation agreements are subject to court approval in Canada. A court must approve a remediation agreement if it is in the public interest and the terms of the remediation agreement are fair, reasonable and proportionate to the corresponding offence.41 Like any other court order in Canada, remediation agreements are published by the courts, except in limited circumstances, such as where it is necessary to protect the identities of victims or the integrity of an ongoing investigation. It remains to be seen how restrictive Canadian courts will be with respect to publishing remediation agreements and their details.
After court approval, criminal proceedings are stayed until the accused completes or violates its remediation agreement. If an accused complies with a remediation agreement, a court will permanently stay the charges against the organisation. If an accused violates its remediation agreement, the prosecution may resume conventional prosecution against the organisation.42
The introduction of the Remediation Regime in Canada may allow for efficient and proportionate resolution of corporate misconduct; incentivised compliance through certain, predictable outcomes and procedures for self-reporting, reparations and remediation; and increased enforcement against individuals directly engaged in illegal conduct. In addition to avoiding a criminal investigation, trial or conviction, the introduction of remediation agreements provides a significant incentive for organisations that conduct business with government. Because changes resolved by remediation agreement may not result in mandatory debarment, organisations may be especially motivated to self-report, cooperate and remediate to maximise their opportunity to obtain a remediation agreement.
The Remediation Regime has been the subject of political and public debate in 2019, centered on the foreign bribery prosecution set out in Section VI.iii, above. This public discourse, which received extensive coverage by traditional news media (and therefore will not be covered in detail again here), has highlighted the policy considerations related to the use of remediation agreements, including the appropriateness of remediation agreements, prosecutorial independence, and whether the collateral impact of criminal convictions against companies on innocent employees, shareholders, etc. should be considered when resolving criminal charges.
While the availability of a non-criminal resolution option created by the Remediation Regime could lead to increased self-reporting, resolutions and enforcement in Canada, its impact has yet to be seen.
ii Integrity Regime update
On 27 March 2018, Public Services and Procurement Canada (PSPC) announced that the federal government of Canada plans to enhance the Integrity Regime. According to a draft Ineligibility and Suspension Policy (the Draft Policy), a central policy to the Integrity Regime, published by the PSPC, organisations convicted of CFPOA offences will still be automatically debarred from contracting with the federal government; however, the period of debarment would be discretionary. Under the Draft Policy, the period of debarment would be determined by a number of factors, including the seriousness of the conduct that led to debarment and actions taken by an organisation to address that conduct. The Draft Policy incentivises an active role in remediation and encourages corporations to strengthen their compliance programmes. It is currently unclear when, or if, the Draft Policy will be implemented.
IX OTHER LAWS AFFECTING THE RESPONSE TO CORRUPTION
It is vital to understand Canadian nuances related to privilege when conducting an internal investigation or defending bribery or corruption allegations. A complete overview of the law of privilege in Canada is beyond the scope of this chapter; however, involving counsel early in any investigation process is a good first step to protect privileged records related to, and developed in conjunction with, an investigation or defence.
It is also important that organisations understand whistle-blower protections in Canada. Section 425.1 of the Criminal Code prohibits any act or threat against an employee intended to discourage reporting to authorities, or any act or threat of retaliation against an employee that has provided information to authorities. Directing an employee not to cooperate with authorities, as well as demotions, terminations and other actions with adverse effects on employment, are offences under Section 425.1.
To ensure compliance with the Criminal Code and CFPOA, organisations should implement and maintain compliance programmes tailored to their unique bribery and corruption risks. Although the CFPOA does not require compliance programmes, case law indicates that a robust compliance programme may be considered a mitigating factor in the event of a bribery prosecution.43 Additionally, the factors outlined in the Criminal Code to guide prosecutors in deciding whether or not to offer a remediation agreement, when read holistically, indicate that a strong compliance programme would likely be a factor that militates in favour of negotiating a remediation agreement, in the event of misconduct.
Guidance documents from other jurisdictions, such as the United States44 and United Kingdom,45 provide useful commentary related to effective compliance programmes that apply broadly in Canada. According to these documents and accepted best practices, the first step in establishing a comprehensive compliance programme is to conduct an anti-bribery and corruption risk assessment and identify the unique corruption risks a company may face. Not only do risk assessments ensure proper resource allocation and a tailored compliance program, but they are also an important factor considered by the RCMP, Public Prosecution Service of Canada, Department of Justice (DOJ), Securities Exchange Commission, and Serious Fraud Office when assessing a company's anti-corruption compliance programme. While the guidance documents referred above and the steps they advocate are helpful for companies with Canadian operations, compliance in Canada would be improved by a formal guidance for the Criminal Code and CFPOA, issued by enforcement authorities.
XI OUTLOOK AND CONCLUSIONS
While the Canadian legal framework related to domestic and foreign bribery remains largely unchanged, the recent legislative and enforcement developments discussed throughout this chapter are significant developments. These changes have increased the number of tools available to Canadian enforcement authorities; however, how and when these tools will be implemented and used remains an open question.
1 Mark Morrison and Michael Dixon are partners at Blake, Cassels & Graydon LLP.
2 RSC 1985, c C-46.
3 SC 1998, c 34.
4 R v. Yellow Old Woman, 2003 ABCA 342.
5 R v. Hinchey,  3 SCR 1128.
7 R v. Pilarinos, 2002 BCSC 1267.
8 R v. ACS Public Sector Solutions Inc., 2007 ABPC 315: Allen Prov J held that hockey tickets valued at over C$100 could constitute a 'material and tangible gain' for the purposes of the Criminal Code.
9 Criminal Code, Section 2: Definition for 'senior officer'.
10 R v. Petroles Global Inc., 2013 QCCS 4262.
11 Sections 121, 122, 123, and 426 of the Criminal Code and all CFPOA offences are indictable offences. Only less serious, summary offences have a limitations period, set out in Section 786(2) of the Criminal Code.
12 As amended, 15 USC Section 78dd-1, et seq.
13 CFPOA, Section 3(1).
15 ibid., Section 2: Definition for 'foreign public official'.
16 R v. Karigar, 2013 ONSC 5199.
17 CFPOA, Section 5.
18 R v. Libman,  2 SCR 178. As set out above, this test applied to all CFPOA violations prior to the 2013 Amendments.
19 Criminal Code, Section 703.2.
20 CFPOA, Section 3(2).
21 SC 2000, c 17.
22 Criminal Code, Sections 354 through 355.5.
23 SC 2014, c 39.
24 ibid., Section 2: definition for 'entity' and Section 8.
25 ibid., Section 9.
26 ibid., Section 29.
27 ibid., Section 2: Definition for 'payee'.
28 ibid., Section 9(4).
29 ibid., Section 24(1).
30 ibid., Sections 24(2) and (3).
31 R v. Barra and Govindia, 2018 ONSC 2659.
32 ibid, at para 29.
33 R v. Barra and Govindia, 2018 ONSC 57.
34 Chowdhury v., Canada, 2014 ONSC 2635.
35 World Bank Group v. Wallace, 2016 SCC 15 (Wallace), citing Bretton Woods and Related Agreements Act, RSC 1985, c B-7.
36 Criminal Code, Section 715.32(1).
38 ibid., Section 715.32(2).
39 ibid., Section 715.32(2)(a).
40 ibid., Section 715.34(1).
41 ibid., Section 715.37(6).
42 ibid., Section 715.37(7).
43 R v. Griffiths Energy International,  AJ No 412.
44 A Resource Guide to the U.S. Foreign Corrupt Practices Act, Criminal Division of the Department of Justice and the Enforcement Division of the Securities and Exchange Commission (2012) and the Evaluation of Corporate Compliance Programs, Criminal Division of the Department of Justice (April 2019).
45 Bribery Act: Guidance on adequate procedures facilitation payments and business expenditure, the Serious Fraud Office (2012).