On February 5, 2013, the Canadian government introduced Bill
S-14, entitled the Fighting Foreign Corruption Act, in an effort to
revamp the Corruption of Foreign Public Officials Act (the
"CFPOA"). The Bill was tabled just two weeks after
Griffith Energy International Inc. entered a guilty plea to a
charge under the CFPOA for its actions in securing an oil and gas
contract in Chad. According to Foreign Affairs Minister John Baird,
"[t]hese amendments will help ensure that Canadian companies
continue to act in good faith in the pursuit of freer markets and
expanded global trade."
Should Bill S-14 come into force, it will most notably:
Broaden the CFPOA's scope of
application: Bill S-14 aims to strengthen the CFPOA's
extraterritorial reach by providing that Canadian citizens and
corporations who commit an act or omission abroad, which would
constitute an offence under the CFPOA if committed in Canada, could
be tried and convicted domestically. Accordingly, Bill S-14 would
introduce in the CFPOA a nationality-based jurisdiction, overriding
the "real and substantial link" criteria established by
jurisprudence, according to which Canada only has prosecutorial
jurisdiction where a significant portion of the activities
constituting an offence have taken place in Canada (Libman v. The
Queen,  2 S.C.R. 178).
Increase the maximum term of imprisonment:
Subsection 3(2) of the CFPOA currently provides that every person
who commits a foreign bribery offence will be guilty of an
indictable offence and liable to imprisonment for a term of not
more than 5 years. The adoption of Bill S-14 would see the maximum
term of imprisonment increased to 14 years, enhancing the
CFPOA's deterrent effect by introducing longer sentences.
Enlarge the foreign bribery offence: As
currently enacted, subsection 3(1) of the CFPOA limits the foreign
bribery offence to profitable businesses. Bill S-14 proposes to
bring unprofitable businesses under the bribery offence's scope
by removing the profitability criterion from the definition of
Introduce a new books and records offence:
Under Bill S-14, it would be an offence if, for the purpose of
bribing a foreign public official in order to obtain an advantage
in the course of business or for the purpose of hiding that
bribery, a person establishes accounts which do not appear in the
books; makes transactions that are not recorded or that are
inadequately identified; records non-existent expenditures; enters
liabilities with incorrect identification of their object;
knowingly uses false documents; or intentionally destroys
accounting books. A person who commits one of these new offences
would be guilty of an indictable offence and liable to imprisonment
for a maximum term of 14 years.
Implement a stricter regime: Facilitation
payments, that is payments made to expedite or secure the
performance by a foreign public official of any act of a routine
nature that is part of the foreign public official's duties or
functions, do not currently amount to an offence under the CFPOA.
Bill S-14 would, however, put an end to the facilitation payments
exception. The amendment would come into force after Bill
S-14's Royal Assent, at a date to be set by order of the
Governor in Council, therefore giving some time to Canadians to
adjust their foreign activities accordingly.
Facilitate the specialization of the anti-corruption
fight: Currently, both provincial and federal authorities
may lay charges for offences under the CFPOA. Bill S-14 would
centralize those powers exclusively within the purview of the RCMP
and the Public Prosecution Service of Canada, an amendment that is
keeping in step with the creation, in 2008, of the RCMP's
International Anti-Corruption Unit.
Ultimately, Bill S-14 promises a tougher approach by Canada
towards the corruption of foreign public officials. It highlights
the importance for Canadian businesses to adopt a detailed
compliance and monitoring program to minimize the risk of illegal
conduct by their employees and to conduct a thorough
anti-corruption due diligence while carrying out a merger or an
acquisition in order to avoid successor liability.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Under the Income Tax Act, the Employment Insurance Act, and the Excise Tax Act, a director of a corporation is jointly and severally liable for a corporation's failure to deduct and remit source deductions or GST.
Under the Income Tax Act, the Employment Insurance Act, the Canada Pension Plan Act and the Excise Tax Act, a director of a corporation is jointly and severally liable for a corporation's failure to deduct and remit source deductions.
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