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
The Bill's enactment has amended the Act in five key
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
Making false records of transactions in the relevant corporate
records, or failing to record actual transactions;
Incorrectly identifying liabilities in the corporate
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
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.
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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