Although Canada has recently made progress in investigating the bribery of foreign public officials by Canadian businesses, Canada has only completed one prosecution since it enacted its foreign bribery law in 1999. A new March 2011 report by the OECD states that Canada’s regime for enforcement of the Corruption of Foreign Public Officials Act (CFPOA) remains problematic in important areas.
The OECD Working Group on Bribery has just completed a report on Canada’s enforcement of the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions. Enforcement has recently increased, with one company convicted in 2005 for violating the CFPOA, one ongoing prosecution and over 20 active investigations, the report notes. Credit for these cases is largely attributed to the RCMP International Anti-Corruption Unit, established in 2008. The RCMP Unit has two teams – one in Ottawa, Canada’s capital, and another in Calgary, Canada’s hub for the extractive industries. The Unit is also commended for its substantial public outreach and awareness-raising efforts. But the report warns that Canada’s ability to successfully prosecute these investigations will be in jeopardy unless the Public Prosecution Service of Canada is given the resources it needs to prosecute the large volume of cases that may soon follow the investigations.
Other main recommendations of the Group are as follows:
- Amend the CFPOA so that it is clear that it applies to bribery related to the conduct of all international business, not just business ‘for profit’;
- Ensure that sanctions applied in practice for CFPOA violations are effective, proportionate and dissuasive;
- Take such measures as may be necessary to prosecute Canadian nationals for bribery of foreign public officials committed abroad; and
- Clarify that police and prosecutors may not consider factors such as the national economic interest and relations with a foreign State, when deciding whether to investigate or prosecute allegations of foreign bribery.
The Working Group commended Canada for codifying corporate liability in the Criminal Code for CFPOA and other offences, as well as important initiatives for increasing reporting of foreign bribery in the public and private sectors, including enacting a Criminal Code offence of threatening or retaliating against employees who report misconduct.
The report, available at www.oecd.org/daf/nocorruption, lists all of the recommendations to Canada adopted by the Working Group on Bribery - which includes the 34 OECD Member countries plus Argentina, Brazil, Bulgaria and South Africa - and includes an overview of enforcement efforts and specific legal and policy features in Canada for combating the bribery of foreign public officials. Due to the significance of the issues raised in this report, the Working Group recommends that Canada report back to it on progress in October 2011. Following the usual process, Canada will also make an oral report within one year and a further written report within two years, which will be made publicly available.