Canada: Canada's Anti-Bribery Laws: It May Not Be Enough To Say You Didn't Know . . .

Last Updated: May 10 2013
Article by Mark Sills and Jennifer L. Egsgard

Over the past few years, mining companies have become increasingly aware of the potential civil and criminal liability arising from the payment of bribes to foreign government officials.

Under Canada's Corruption of Foreign Public Officials Act (CFPOA), companies and individuals can face unlimited fines, and individuals can face up to five years in jail, if they are found to have bribed a foreign official. The $10.35-million fine newly levied against privately held Griffiths Energy International for its payments to relatives of Chad officials in 2009 is one recent example.

Violations of the CFPOA are in essence criminal offences and are dealt with as criminal prosecutions. Canada is not at all unique in this respect: criminal liability for foreign bribery arises under anti-bribery laws in many other countries, notably the U.S., the U.K. as well as in all other countries that are members of the Organisation for Economic Cooperation and Development (OECD).

While conscious of the legal liability arising from direct acts of bribery and other corrupt activities, senior management of mining firms may be less aware that corrupt activities by third-party agents may also be a source of criminal liability for their company, as well in certain cases for their employees and directors. Where there is some evidence of wrongdoing in the form of illegal payments to foreign government officials, willful ignorance on the part of senior management of a company agent's corrupt activities is unlikely to shield the company from liability for such acts under Canadian law.

The CFPOA prohibits bribery payments made "directly or indirectly" to a foreign official. An indirect bribe includes a bribe through a third party, such as an agent, as the Canadian Department of Justice has made clear in its 1999 Guide to the CFPOA. As with other criminal offences, there is a requirement of intention for criminal liability to arise. Whether or not intention exists is determined in accordance with common law principles of criminal culpability.

Under Canadian law, even if a company or its employees did not actually know that a third party agent was engaging in bribery, criminal law principles allow a court to infer knowledge of, and therefore impute liability for, a criminal act if the court finds that a company or individual was being "willfully blind" to illegal activities.

The CFPOA contains no definition of what constitutes "willful blindness" unlike the U.S. Foreign Corrupt Practices Act, where there is a broad concept of imputed knowledge.

However the Canadian Supreme Court has elaborated on the concept of willful blindness in a number of cases. Most recently, in the 2010 case of R. v. Briscoe, the Supreme Court stated that:

The doctrine of willful blindness imputes knowledge to an accused whose suspicion is aroused to the point where he or she sees the need for further inquiries, but deliberately chooses not to make those inquiries.

... [a] finding of willful blindness involves an affirmative answer to the question: Did the accused shut his eyes because he knew or strongly suspected that looking would fix him with knowledge?

... willful blindness arises where a person who has become aware of the need for some inquiry declines to make the inquiry because he does not wish to know the truth. He would prefer to remain ignorant...

The practical implications of this willful blindness principle are not hard to discern. For example, a company might hire a third party agent to obtain permits, and then subsequently become aware of certain facts leading to an inference that the agent may be paying bribes to obtain those permits but fail to inquire further into the matter for fear of what such inquiries might reveal. In the event of a prosecution under the CFPOA, the company could potentially be found liable for the agent's corrupt activities on the basis that the company deliberately chose to abstain from further inquiry and thus knowledge of the agent's activities could be imputed through the company's willful blindness.

The implications of this for companies subject to Canada's CFPOA are clear. It is simply not enough to turn a blind eye to potential acts of bribery by company agents in foreign jurisdictions on the principle that what the company does not know about the activities of its foreign agents will not hurt it.

Rather, it is very likely to be the case that in situations where a company is operating in a foreign jurisdiction, particularly in those that have a reputation for bribery and corruption, additional diligence on the part of company senior management in relation to potential acts of bribery will be prudent and necessary. It is unlikely that it would be a sufficient defence to a charge of violation of the CFPOA to simply allege lack of knowledge of such acts, particularly where companies are operating in high-risk jurisdictions and there are already factual indications of irregularities.

This in turn implies that Canadian and foreign mining companies should undertake a number of precautionary measures to forestall future liability for acts of bribery or corruption in relation to foreign government officials by their foreign subsidiaries or agents. Such measures might include, but are not limited to: thorough review of the terms and conditions of contracts with third-party agents, comprehensive background checks of all persons hired to represent the company abroad and rights of audit of all financial records of an agent acting on the company's behalf. There should be appropriate sanctions for non-compliance.

A failure by a Canadian firm to exercise such basic due diligence will substantially increase the potential for a successful prosecution in the event that charges of bribery are brought under the CFPOA against the company.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.