Canada: Designing An Anti-Corruption Program: A Guide For Canadian Businesses


"Jurisdiction" was once described by Felix Frankfurter, a former justice of the United States Supreme Court, as "a verbal coat of too many colors".1 In the realm of law enforcement, "jurisdiction" is indeed a broad concept, which generally refers to the power of an authority to do something, including: 2

  • the power to legislate, make rules, issue commands or grant authorizations that are binding upon persons and entities, which is sometimes referred to as prescriptive jurisdiction;
  • the power to use coercive means to give effect to laws and to police or investigate a matter, which is sometimes referred to as enforcement or investigative jurisdiction; and
  • the power to resolve disputes or interpret the law through decisions that carry binding force, which is also known as adjudicative jurisdiction.

This chapter serves to delineate the outer limits of the jurisdiction of Canadian authorities, including the jurisdiction of Canadian courts, to enforce Canada's Corruption of Foreign Public Officials Act (the "CFPOA") upon individuals and entities. In other words, in this chapter, we will attempt to identify the jurisdictional hooks that can bring a CFPOA offence under the jurisdiction of Canadian courts.

The first part of the present chapter gives a general overview of the scope of the CFPOA offences, which informs the authorities' jurisdiction under the CFPOA.

The second and third parts of the present chapter will address, respectively, jurisdiction over the offence and jurisdiction over the person accused of the offence. These are two separate notions, 3 but both are essential in enabling the courts to assert their jurisdiction. 4

The fourth part will address situations where courts can assert jurisdiction over persons and entities for the actions of third parties, such as subsidiaries, distributors and partners.

Finally, the fifth part will briefly outline the situations where a given offence can fall simultaneously under the jurisdictions of the Canadian CFPOA, the US Foreign Corrupt Practices Act (the "FCPA") and the UK Bribery Act.


The CFPOA provides for two criminal offences: (a) Section 3 of the CFPOA criminalizes foreign bribery while (b) Section 4 of the CFPOA provides for a books and records offence.

A. Section 3 CFPOA: Foreign Bribery Offence Foreign corruption, as criminalized under Section 3 of the CFPOA, is:

i. the giving, offering or agreement to give or offer;

ii. an advantage or benefit of any kind;

iii. directly or indirectly to a foreign public official

in order to obtain an advantage in the course of business, and:

a. as consideration for an act or omission by the official in connection with the performance of his or her duties; or

b. to induce the official to use his or her position to influence the decisions of his or her state or public international organization.

A closer look at the main components of the offence reveals its breadth. First, the CFPOA criminalizes the conduct of giving, offering or agreeing to give or offer a bribe, regardless of whether or not the bribe was actually received by the public official. 5 In criminal law, such an offence is referred to as an inchoate offence or a conduct crime, as opposed to a result crime. 6 It follows that if a person agrees to offer a benefit to a foreign public official, but later changes his or her mind, that person has nonetheless committed an offence under the CFPOA – even if there is no evidence that money has changed hands. 7

Second, the concept of an advantage or benefit of any kind leaves open the possibility of even relatively small benefits falling afoul of the CFPOA. 8

The offence targets not only offshore wire payments and envelopes filled with cash. It can also encompass lavish gifts and less obvious benefits, such as payments of tuition, promises of future employment, support for business opportunities, provision of confidential information or access to an exclusive club. 9 It could also encompass the practice of hiring or doing business with a public official's children or relatives, an issue coined as the "princeling problem".

In the United States, authorities have taken the position that such practice could constitute an offence if the official's duties relate to the hiring company's interests and something of value passes through the relative to the official. 10

"Late rewards" bestowed after a foreign public official has done or omitted to do something are not expressly covered by the offence. While such payments might not influence the public official to take any given course of action, they could still be viewed as evidence of a prior agreement.

An exception is provided for benefits that are permitted or required under local laws or under a public international organization's governing laws. 11 Providing travel, hospitality or entertainment to a public official can also amount to an unlawful benefit, unless the expenditures are reasonable and are directly related to a valid business purpose, such as the demonstration of products or the execution of a contract. 12 However, this exception does not, for example, cover the expenditures of a public official's guest.

An exception is also currently provided for certain "facilitation payments" made with the intent to induce a public official to perform or expedite the performance of a routine act that is part of the foreign public official's duties or functions. Such routine duties, which are usually non-discretionary, include the issue of permits, mail delivery, power and water supply, police protection or the loading and unloading of cargo. 13

However, legislation to repeal the facilitation payment exception has been passed by Parliament and will take effect if and when it is proclaimed in force, which could happen without advance notice. 14 The suspension of the repeal gives Canadian businesses time to adjust their foreign activity accordingly.

B. Section 4 CFPOA: Books and Records Offence

The books and records offence is a relative newcomer in Canadian foreign anti-corruption law. It was introduced in the June 2013 amendments to the CFPOA. Section 4 of the CFPOA provides a number of offences for concealing bribery in accounting records. Specifically, every person who:

i. for the purpose of bribing a foreign public official in order to obtain or retain an advantage in the course of business; or

ii. for the purpose of hiding that bribery commits one of the following acts:

a. establishes or maintains accounts which do not appear in any of the books and records that they are required to keep in accordance with applicable accounting and auditing standards;

b. makes transactions that are not recorded in those books and records or that are inadequately identified in them;

c. records non-existing expenditures in those books and records;

d. enters liabilities with incorrect identification of their object in those books and records;

e. knowingly uses false documents; or

f. intentionally destroys accounting books and records earlier than permitted by law

perpetrates an offence liable to imprisonment for a term of not more than 14 years.


1 United States v. L. A. Tucker Truck Lines, Inc., 344 US 33 at 39 (1952) [Tucker].

2 R v. Hape, 2007 SCC 26 at para 58 [Hape].

3 Chowdhury v. H.M.Q., 2014 ONSC 2635 at para 13 [Chowdhury]; Canada (Minister of Justice and Attorney General) v. Kavaratzis, 2006 CanLII 13237 at para 18 (ON CA) [Kavaratzis].

4 Chowdhury, supra note 3 at para 13.

5 R v. Karigar, 2013 ONSC 5199 at para 28-29 [Karigar].

6 R v. Greenwood, [1991] OJ No. 1616 at para 31 (ONCA) (Quicklaw) [Greenwood].

7 Karigar, supra note 5 at paras 29 and 33.

8 However, it may prove difficult to characterize a trivial benefit as being given as consideration for an act or omission.

9 Mark Pieth, Lucinda A. Low & Nicolas Bonucci, eds., The OECD Convention on Bribery: A Commentary, 2nd ed. (New York: Cambridge University Press, 2014) at 128.

10 US DOJ, FCPA Opinion Releases, n° 82-01, 82-04 & 95-03, online:

11 Corruption of Foreign Public Officials Act, SC 1998, c 34, s 3(3)(a) [CFPOA].

12 Ibid, s 3(3)(b).

13 Ibid, s 3(4).

14 Fighting Foreign Corruption Act, SC 2013, c 26, s 5 [Bill S-14].

To view the full article please click here.

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.

Similar Articles
Relevancy Powered by MondaqAI
Affleck Greene McMurtry LLP
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Affleck Greene McMurtry LLP
Related Articles
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
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions