Academic journal article American University International Law Review

Canada's Corruption of Foreign Public Officials Act and Secret Commissions Offense

Academic journal article American University International Law Review

Canada's Corruption of Foreign Public Officials Act and Secret Commissions Offense

Article excerpt

I. INTRODUCTION

By its enactment of the Foreign Corrupt Practices Act ("FCPA") in 1977,1 the United States became the first country to prohibit the bribery of foreign public officials.2 For many years thereafter, the United States remained the only country to have implemented and enforced such a prohibition. A series of significant international developments in the 1990s and the early part of this century have dramatically changed the landscape.3 1 2 3 * S.

Today most developed countries have implemented, and increasingly enforce, domestic legislation prohibiting the bribery of foreign public officials.4 Virtually all other countries are parties to international conventions prohibiting the bribery of foreign public officials.5 It is only a matter of time before most of the world will have adopted domestic legislation prohibiting the bribery of foreign public officials. The enforcement of the FCPA by the United States and the adoption by the United Kingdom of its Bribery Act 2010 ("UK Bribery Act")* 4 5 6 have both received considerable attention. But the recent adoption of critical amendments by Canada to its Corruption of Foreign Public Officials Act ("CFPOA")7 signals the need for increased attention to be given to Canadian law with respect to foreign bribery.

II. CANADA'S CORRUPTION OF FOREIGN PUBLIC OFFICIAL'S ACT

On December 7, 1998, Canada adopted the CFPOA8 in conjunction with its ratification of the Organisation for Economic Co-operation and Development ("OECD") Convention on Combating Bribery of Foreign Public Officials in International Business Transactions ("OECD Convention").9 The CFPOA was Canada's OECD Convention implementing legislation, and the law became effective on February 14, 1999.10

In adopting the CFPOA, Canada created an act separate from its Criminal Code. The CFPOA combines the OECD Convention's language and requirements with language already in Canada's Criminal Code.11 By its terms, the CFPOA is designed to accommodate additional international conventions relating to the corruption of foreign public officials.12 This now includes Canada's * 10 11 12 ratification of the Inter-American Convention Against Corruption ("Inter-American Convention"), which became effective on January 6, 2000,13 and its ratification of the United Nations Convention against Corruption ("UN Convention"), which became effective on October 2, 2007.14

More recently, Canada amended the CFPOA to broaden its jurisdictional reach and the breadth of its prohibitions.15 These amendments were, in large part, prompted by criticism of the OECD Working Group on Bribery in International Transactions ("OECD Working Group").16 The amendments coincide with considerable efforts by Canadian authorities to establish and train special units of the Royal Canadian Mounted Police devoted to enforcement of the CFPOA.17 Canadian authorities have also sought to ensure the availability of prosecutors with the requisite level of expertise.18 Numerous cases are currently under investigation and a further increase in enforcement is generally anticipated.19

A. THE ANTI-BRIBERY LEGISLATION

The CFPOA provides, in pertinent part, as follows:

Every person commits an offence who, in order to obtain or retain an advantage in the course of business, directly or indirectly gives, offers or agrees to give or offer a loan, reward, advantage or benefit of any kind to a foreign public official or to any person for the benefit of a foreign public official

(a)as consideration for an act or omission by the official in connection with the performance of the official's duties or functions; or

(b)to induce the official to use his or her position to influence any acts or decisions of the foreign state or public international organisation for which the official performs duties or functions.20

B. JURISDICTION

With the recent amendments to the CFPOA,21 conduct that may 18 19 20 21 otherwise violate the CFPOA is now subject to both territorial and nationality jurisdiction. …

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