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Anti-Corruptiontransactional Stages and for Crucial Aspects of Doing Business

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Anti-Corruptiontransactional Stages and for Crucial Aspects of Doing Business GLOBAL PRACTICE GUIDE CANADA Definitive global law guides offering comparative analysis from top ranked lawyers LAW AND PRACTICE: p.2 Contributed by McMillan LLP The ‘Law & Practice’ sections provide easily accessible information on navigating the legal system when conducting business in the jurisdiction. Leading lawyers explain local law and practice at key Anti-Corruptiontransactional stages and for crucial aspects of doing business. Second Edition Canada McMillan LLP chambers.com CANADA LAW AND PRacTICE Law and Practice Contributed by McMillan LLP Contents 1. Offences p.4 5. Enforcement p.10 1.1 Legal Framework for Offences p.4 5.1 Enforcement of Anti-bribery and Anti- 1.2 Classification and Constituent Elements p.4 corruption Laws p.10 1.3 Scope p.8 5.2 Enforcement Body p.10 5.3 Process of Application for Documentation p.11 2. Defences and Exceptions p.9 5.4 Discretion for Mitigation p.11 2.1 Defences p.9 5.5 Jurisdictional Reach of the Body/Bodies p.11 2.2 Exceptions p.9 5.6 Recent Landmark Investigations or Decisions 2.3 De Minimis Exceptions p.9 Involving Bribery or Corruption p.11 2.4 Exempt Sectors/Industries p.9 5.7 Level of Sanctions Imposed p.12 2.5 Safe Harbour or Amnesty Programme p.9 6. Review and trends p.12 3. Penalties p.9 6.1 Assessment of the Applicable Enforced 3.1 Penalties on Conviction p.9 Legislation p.12 3.2 Guidelines Applicable to the Assessment of 6.2 Likely Future Changes to the Applicable Penalties p.9 Legislation or the Enforcement Body p.12 4. Compliance and Disclosure p.10 4.1 National Legislation and Duties to Prevent Corruption p.10 4.2 Disclosure of Violations of Anti-bribery and Anti-corruption Provisions p.10 4.3 Protection Afforded to Whistle-blowers p.10 4.4 Incentives for Whistle-blowers p.10 4.5 Location of Relevant Provisions Regarding Whistle-blowing p.10 2 LAW AND PRacTICE CANADA McMillan LLP is a leading business law firm serving pub- tions, export/import controls and tax offences, as well as lic, private and not-for-profit clients across key industries offences under health and safety, discrimination, immigra- in Canada, the United States and internationally through tion, financial services, energy, environmental and other its offices in Vancouver, Calgary, Toronto, Ottawa, Montréal regulatory regimes. The team also manages and defends and Hong Kong. The firm represents corporations, other against search warrants, inspection orders, interviews given organisations and executives at all stages of criminal, quasi- under statutory compulsion, wire-tapping orders, and other criminal and regulatory investigations and prosecutions for investigative actions, and advises on risk management, reg- all types of white-collar offences, including fraud, bribery ulatory compliance, reputation management and defama- and corruption, money laundering, cartels and price-fixing, tion, among other matters. insider-trading or other securities offences, economic sanc- Authors Benjamin Bathgate is a partner in the Neil Campbell is a partner at the firm and firm’s litigation and dispute resolution a member of the white-collar defence and group, a co-chair of the white-collar government investigations group, as well defence and government investigations as co-chair of the competition and trade group and focuses on complex corporate group. His competition law practice and commercial litigation in the banking focuses on merger clearances under the and financial services industries. He has expertise in Competition Act, reviews under the Investment Canada several specialised areas of litigation, including Act, representing clients in cartel investigations and related commercial fraud and professional negligence. Ben works class actions, as well as abuse of dominance and other extensively with financial services clients investigating and competition law proceedings, and advising on marketing, prosecuting various forms of fraud, including fraudulent distribution, grey marketing and joint-venture issues. Neil conveyances, and assists in tracing and asset recovery. He has particularly extensive experience in the financial has also worked on numerous high-profile corporate and services, pharmaceuticals and chemicals, energy, natural securities fraud cases, including fraud allegations in resources and transportation industries. various corporate transactions and in oppression and conspiracy claims. Timothy Cullen is a senior associate in McMillan’s advocacy and litigation group, Guy Pinsonnault is a partner in the firm’s and a member of the white-collar defence competition group, and a co-chair of the and government investigations group, as white-collar defence and government well as the public procurement group. His investigations group. He handles the full litigation practice includes advising and range of competition, white-collar crime representing clients in a range of industries on commercial and Canadian business regulation, and contract disputes, regulatory prosecutions, lobbying, litigation and advisory work, with a particular focus on government and public policy, product liability claims and Canadian and international cartels, anti-corruption and procurement-related litigation. Before joining the firm, commercial crime matters. As a prosecutor for more than Timothy served in various roles on Parliament Hill for 30 years, Guy has extensive experience in dealing with nearly a decade, providing political and policy advice to local, national and cross-border corporate crime members of Parliament and senators on a range of issues, investigations. He has appeared before Superior courts, the particularly foreign affairs and international trade. Federal Court, the Court of Appeal of Quebec and the Supreme Court of Canada. 3 CANADA LAW AND PRacTICE 1. Offences use for the non-prosecutor. Similarly, the PPSC’s Proposed Best Practices for Prosecuting Fraud Against Governments 1.1 Legal Framework for Offences does not contain information regarding interpretation and enforcement. 1.1.1 International Conventions 1.1.4 Recent Key Amendments to National Legislation On 17 December 1998, Canada ratified the Organisation for Economic Co-operation and Development (OECD) Con- In response to criticism about low levels of enforcement, the vention on Combating Bribery of Foreign Public Officials CFPOA was significantly expanded through amending leg- in International Business Transactions. In addition to the islation in June 2013. The amendments broadened the scope OECD Convention on Combating Bribery of Foreign Public and application of Canada’s anti-bribery of foreign public Officials in International Business Transactions, Canada is a officials regime, established new offences, and increased party to the Inter-American Convention against Corruption penalties, among other changes. More recently, the elimina- (ratified 1 June 2000), and the United Nations Convention tion of an exception in the CFPOA for facilitation payments against Corruption (ratified 2 October 2007). (arising from the 2013 amending legislation) came into force on 31 October 2017. 1.1.2 National Legislation On 19 September 2018, amendments to the Criminal Code Canada followed through on its obligation under the OECD authorising the use of remediation agreements (ie, deferred convention to implement legislation to criminalise bribery prosecution agreements) became available as a means of of foreign public officials by enacting the federal Corrup- resolving criminal charges against businesses for certain tion of Foreign Public Officials Act (CFPOA) on 14 Febru- offences under the Criminal Code and other criminal stat- ary 1999. The CFPOA only addresses the bribery of public utes, including the CFPOA. officials who are outside Canada. 1.2 Classification and Constituent Elements The federal Criminal Code contains a number of domestic Bribery offences for bribery, fraud, breach of trust, corruption, and Section 3(1) of the CFPOA makes it an offence for anyone influence-peddling, among other offences, which are appli- cable to both public officials and private parties. The prov- “who, in order to obtain or retain an advantage in the course ince of Quebec is the only sub-federal jurisdiction in Canada of business, directly or indirectly gives, offers or agrees to with its own anti-corruption legislation. Its Anti-Corruption give or offer a loan, reward, advantage or benefit of any kind Act came into force on 13 June 2011, at a time when allega- to a foreign public official or to any person for the benefit of a tions of significant corruption in relation to public construc- foreign public official: (a) as consideration for an act or omis- tion contracts were being investigated. sion by the official in connection with the performance of the official’s duties or functions; or (b) to induce the official 1.1.3 Guidelines for the Interpretation and Enforcement to use his or her position to influence any acts or decision of National Legislation of the foreign state or public international organization for which the official performs duties or functions.” There is limited official guidance of use relating to the inter- pretation and enforcement of Canada’s anti-bribery/anti- Foreign public officials are defined in section 2 of the CFPOA corruption regime. In May 1999, the federal Department of as: Justice published The Corruption of Foreign Public Officials Act: a guide. It provides a general overview and background • a person who holds a legislative, administrative or judi- information about the CFPOA. However, it has not been cial position in a foreign state; updated
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