Strengthening Canada’s fight against foreign bribery
Q. Where and to whom does the Corruption of Foreign Public Officials Act (CFPOA) apply?
A. The CFPOA as amended in 2013 allows for the prosecution in Canada of acts committed by Canadian citizens, permanent residents, and corporations, societies, firms or partnerships organized under the laws of Canada or a province of Canada for the purposes of the offences under the CFPOA. This provision essentially subjects all Canadian citizens and companies to global regulation by Canadian authorities under the CFPOA.
Q. When were the amendments to the CFPOA first made?
A. On February 5, 2013, the Government announced it was taking further steps to combat corruption and bribery by tabling Bill S-14, An Act to amend the Corruption of Foreign Public Officials Act. The bill received Royal Assent on June 19, 2013.
Q. What amendments were made to the CFPOA in 2013?
A. The primary changes were:
- an increase in the maximum penalty for an individual convicted of a foreign bribery offence from 5 to 14 years imprisonment in addition to unlimited fines;
- creation of a new offence in relation to books and records kept to further or hide foreign bribery;
- expanded jurisdiction based on nationality;
- removal of the concept of “for profit” from the definition of business; and
- the removal of the facilitation payment exception under the Act, which took place on October 31, 2017. Canada delayed the implementation of this change in order to give companies time to adjust their practices and procedures.
Q. What is a facilitation payment and what impact does this change have on Canadian companies doing business abroad?
A. Sometimes known as “grease payments”, facilitation payments are those made to expedite or secure the performance by a foreign public official of any act of a routine nature that is part of the foreign public official’s duties or functions. Examples include: the issuance of a permit, licence or other document; the processing of official documents, such as visas and work permits; the provision of services normally offered to the public, such as mail and utilities; and the provision of other government services such as police protection, cargo logistics, the protection of perishable products from deterioration or the scheduling of inspections related to contract performance or transit of goods.
Since October 31, 2017, any payment made by a Canadian to a foreign public official to secure or expedite the performance of acts of a routine nature that are within the scope of the official's duties and functions in order to obtain or retain an advantage in the course of business is not permitted under Canadian law, regardless of whether it takes place in Canada or abroad.
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