Amendments to Canadian anti-bribery legislation drastically increase the Federal Government's ability to lay corruption charges and the penalties for conviction.
Recent amendments to Canada's Corruption of Foreign Public Officials Act (the "Act") give added weight to the anti-bribery Act which was formerly riddled with loopholes. The amendments expanded the scope of "corruption" constituting an offence and improved the Royal Canadian Mounted Police's (the "RCMP") ability to crack down on offenders.
The four most significant amendments to the Act passed by Parliament on June 19, 2013 are:
- Increased penalties for offences committed under the Act;
- Expanded the scope of the offence of bribery, now including facilitation payments;
- Created a new offence for falsifying or destroying records to hide evidence of bribery; and
- Established nationality jurisdiction, allowing the RCMP to prosecute offenders with ties to Canada, whether the offence occurred in Canada or not.
Increased Penalties
Fourteen years imprisonment is the new maximum penalty for corruption offences under the Act, a sharp increase from the former five year maximum.
Facilitation Payments Now an Offence
Facilitation payments are payments made to lower-level public officials to expedite or secure the performance of routine tasks which that public official was required to perform anyway.
Prior to the amendments, facilitation payments were the one exception to the anti-bribery law. The amendments eliminated the facilitation payment exception, making these types of payments an offence punishable under the Act.
Although this amendment has been passed by Parliament, it will not take effect until a date yet to be named by the Governor General. This allows businesses time to adjust their policies regarding facilitation payments and phase out the practice, so as to be compliant with the amendment when it does take effect.
Books and Records Offence
Any person or business discovered to have "cooked the books" to hide evidence of corruption faces an additional books and records offence. Charges for this offence can be brought regardless if charges are brought for the bribery itself.
This new offence includes keeping secret accounts not included in the books and records, not recording or falsely recording transactions, mislabelling entries, knowingly using false documents or intentionally destroying accounting books and records earlier than the law permits.
Nationality Jurisdiction
Before the amendments, the RCMP's ability to lay charges was hindered by the territorial jurisdiction requirements. Previously, the RCMP could only lay charges where the act or omission which constituted the offence occurred in Canada or was connected to Canada.
Now, an act or omission is deemed to have been committed in Canada where the person committing the offence is a Canadian citizen, a permanent resident, or a public body, corporation, society, company, firm or partnership that is incorporated, formed or otherwise organized under the laws of Canada or a province.
This gives the RCMP the power to lay charges in Canada for acts or omissions which happened entirely in a foreign country or countries.
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