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GLOBAL PRACTICE GUIDE Defi niti ve global law guides off ering comparati ve analysis from top ranked lawyers Anti-Corruption Canada McMillan LLP chambers.com CANADA LAW AND PRACTICE: p.3 Contributed by McMillan LLP The ‘Law & Practice’ sections provide easily accessible information on navigating the legal system when conducting business in the jurisdic- tion. Leading lawyers explain local law and practice at key transactional stages and for crucial aspects of doing business. LAW AND PRACTICE CANADA Law and Practice Contributed by McMillan LLP Contents 1. Offences p.5 1.1 Legal Framework for Offences p.5 1.2 Classification and Constituent Elements p.5 1.3 Scope p.9 1.4 Limitation Periods p.9 2. Defences and Exceptions p.10 2.1 Defences p.10 2.2 De Minimis Exceptions p.10 2.3 Exempt Sectors/Industries p.10 2.4 Safe Harbour or Amnesty Programme p.10 3. Penalties p.10 3.1 Penalties on Conviction p.10 3.2 Guidelines Applicable to the Assessment of Penalties p.10 4. Compliance and Disclosure p.11 4.1 National Legislation and Duties to Prevent Corruption p.11 4.2 Disclosure of Violations of Anti-bribery and Anti-corruption Provisions p.11 4.3 Protection Afforded to Whistle-blowers p.11 5. Enforcement p.11 5.1 Enforcement of Anti-bribery and Anti- corruption Laws p.11 5.2 Enforcement Body p.11 5.3 Process of Application for Documentation p.11 5.4 Discretion for Mitigation p.12 5.5 Jurisdictional Reach of the Body/Bodies p.12 5.6 Recent Landmark Investigations or Decisions Involving Bribery or Corruption p.12 5.7 Level of Sanctions Imposed p.12 6. Review and Trends p.13 6.1 Assessment of the Applicable Enforced Legislation p.13 6.2 Likely Future Changes to the Applicable Legislation or the Enforcement Body p.13 3 CANADA LAW AND PRACTICE McMillan LLP is a leading business law fi rm serving pub- tions, export/import controls and tax off ences, as well as lic, private and not-for-profi t clients across key industries off ences under health and safety, discrimination, immigra- in Canada, the United States and internationally through tion, fi nancial services, energy, environmental and other its offi ces in Vancouver, Calgary, Toronto, Ottawa, Montréal regulatory regimes. Th e team also manages and defends and Hong Kong. Th e fi rm represents corporations, other against search warrants, inspection orders, interviews given organisations and executives at all stages of criminal, quasi- under statutory compulsion, wiretapping orders, and other criminal and regulatory investigations and prosecutions for investigative actions, and advises on risk management, reg- all types of white-collar off ences, including fraud, bribery ulatory compliance, reputation management and defama- and corruption, money laundering, cartels and price-fi xing, tion, among other matters. insider-trading or other securities off ences, economic sanc- Authors Benjamin Bathgate is a partner in the Neil Campbell is a partner at the fi rm and fi rm’s Litigation and Dispute Resolution a member of the White-Collar Defence Group, a Co-Chair of the White-Collar and Government Investigations Group, as Defence and Government Investigations well as Co-Chair of the Competition and Group, and focuses on complex corporate Trade Group. His competition law practice and commercial litigation in the banking focuses on merger clearances under the and fi nancial 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 fi nancial 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 fi nancial has also worked on numerous high-profi le 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 an Associate in McMillan’s advocacy and litigation group, Guy Pinsonnault is a partner in the fi rm’s and is developing a civil, commercial and Competition Group, and a Co-Chair of regulatory litigation practice in the fi rm’s the White-Collar Defence and Ottawa offi ce. He advises and represents Government Investigations Group. He clients in a range of industries on handles the full range of competition, commercial and contract disputes, regulatory white-collar crime and Canadian business prosecutions, international trade, government and public regulation, litigation and advisory work, with a particular policy, product liability claims and procurement matters. focus on Canadian and international cartels, anti- Before joining the fi rm, Timothy served in various roles on corruption and commercial crime matters. As a Prosecutor Parliament Hill for nearly a decade, providing political and for more than 30 years, Guy has extensive experience in policy advice to Members of Parliament and Senators on a dealing with local, national and cross-border corporate range of issues, particularly foreign aff airs and crime investigations. He has appeared before Superior international trade. courts, the Federal Court, the Court of Appeal of Quebec and the Supreme Court of Canada. 4 LAW AND PRACTICE CANADA 1. Offences ernments’ does not contain information regarding interpre- tation and enforcement. 1.1 Legal Framework for Offences 1.1.1 International Conventions 1.1.4 Recent Key Amendments to National Legislation On 17 December 1998, Canada ratified the Organisation for In response to criticism about low levels of enforcement, the Economic Co-operation and Development (OECD) Con- CFPOA was significantly expanded through amending leg- vention on Combating Bribery of Foreign Public Officials in islation in June 2013. The amendments broadened the scope International Business Transactions. Canada is also a party and application of Canada’s anti-bribery of foreign public to the Inter-American Convention against Corruption (rati- officials regime, established new offences and increased fied 1 June 2000) and the United Nations Convention against penalties, among other changes. More recently, the elimina- Corruption (ratified 2 October 2007). tion of an exception in the CFPOA for facilitation payments (arising from the 2013 amending legislation) came into force 1.1.2 National Legislation on 31 October 2017. Canada followed through on its obligation under the OECD On 19 September 2018, amendments to the Criminal Code Convention to implement legislation to criminalise bribery authorising the use of remediation agreements (ie, deferred of foreign public officials by enacting the federal Corrup- prosecution agreements) became available as a means of tion of Foreign Public Officials Act (CFPOA) on 14 February resolving criminal charges against businesses for certain 1999, which only addresses bribery of public officials who offences under the Criminal Code and other criminal stat- are outside Canada. utes, including the CFPOA. The federal Criminal Code contains a number of domestic 1.2 Classification and Constituent Elements offences for bribery, fraud, breach of trust, corruption and 1.2.1 Bribery influence-peddling, among other offences, which are appli- cable to public officials and private parties. The province of Section 3(1) of the CFPOA makes it an offence for anyone Québec is the only sub-federal jurisdiction in Canada with “who, in order to obtain or retain an advantage in the course its own anti-corruption legislation. Its Anti-Corruption Act of business, directly or indirectly gives, offers or agrees to came into force on 13 June 2011, at a time when allegations give or offer a loan, reward, advantage or benefit of any kind of significant corruption in relation to public construction to a foreign public official or to any person for the benefit of a contracts were being investigated. foreign public official: (a) as consideration for an act or omis- sion by the official in connection with the performance of 1.1.3 Guidelines for the Interpretation and Enforcement of the official’s duties or functions; or (b) to induce the official National Legislation to use his or her position to influence any acts or decision of the foreign state or public international organization for There is limited official guidance of use relating to the inter- which the official performs duties or functions.” pretation and enforcement of Canada’s anti-bribery/anti- corruption regime. In May 1999, the federal Department Foreign public officials are defined in Section 2 of the of Justice published ‘The Corruption of Foreign Public Offi- CFPOA as: cials Act: a guide’. It provides a general overview and back- ground information about the CFPOA. However, it has not • a person who holds a legislative, administrative or judicial been updated to reflect amendments to the CFPOA since position in a foreign state; its creation and does not provide significant guidance. The • a person who performs public duties or functions for a Public Prosecution Service of Canada (PPSC) – the federal foreign state, including a person employed by a board, government organisation with responsibility for prosecut- commission, corporation or other body or authority that ing criminal offences under federal jurisdiction (other than is established to perform a duty or function on behalf of the offences under the Criminal Code, which is the responsibil- foreign state, or is performing such a duty or function; and ity of provincial Attorneys General), including violations of • an official or agent of a public international organisation the CFPOA – has a ‘PPSC Deskbook’ that sets out guid- that is formed by two or more states or governments, or ing principles as well as directives and guidelines regarding by two or more such public international organisations.
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