Member Article

Background

Over the last 15years, governments around the world have indicated their willingness to implement laws prohibiting the bribery of foreign public officials (a “Foreign Official”) in connection with attempting to secure a business advantage.  While Canada has had anti-corruption legislation in place since 1998 in the form of the Corruption of Foreign Public Officials Act (Canada)¹ (the “CFPOA”), it has been limited in scope and minimally enforced by Canadian authorities.  However, recent developments have clearly illustrated that this area of the law is changing, both from a legislative and enforcement standpoint.  On June 19, 2013, the Canadian government enacted amendments to the CFPOA (the “Amended CFPOA”), implementing a variety of changes aimed at strengthening both the scope and application of the legislation.  This initiative appears to be consistent with the increased vigour that Canadian enforcement authorities have shown in the last two years towards anti-corruption related matters, which have included two significant convictions resulting in penalties in the range of $10 million for each company as well as the first conviction of an individual under the CFPOA.  Canadian companies should revisit the legislation and ensure that they understand the implications of the Amended CFPOA to avoid encountering compliance-related issues.

Key Changes to the Corruption of Foreign Public OfficialsAct (Canada)

Jurisdiction and Application

The Amended CFPOA now grants Canadian authorities thejurisdiction to pursue acts of bribery committed by any Canadian citizen,permanent resident or entity incorporated or formed in Canada, no matter wherein the world the act is alleged to have occurred and regardless of whether ithas any other connection to Canada.² Prior to the amendments passed in June 2013, the jurisdiction ofCanadian authorities was confined to situations where a real and substantiallink could be established between the offence and Canada.

Additionally, the Amended CFPOA now applies to bothfor-profit businesses and not-for-profit organizations.³ Previously, the scope of the CFPOA waslimited to for-profit businesses only, a feature of the legislation for whichCanada had historically been criticized by the international anti-corruptioncommunity.  This change may be ofparticular interest to Canadian companies that use a not-for-profit organizationto contribute funding to local governments in the countries which they conducttheir operations.

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