[co-authors: Léon H. Moubayed, Corey Omer]*
1. Is your country a member of the OECD Anti-Bribery Convention?
2. Is your country a member of any other bilateral or multilateral conventions on anti-corruption?
Yes. Canada is a party to the United Nations Convention against Corruption and the Inter-American Convention against Corruption.
3. Are there local anti-corruption laws in your country focusing on corporations, not individuals? If yes, what sanctions can be imposed?
Canada does not have anti-corruption laws explicitly focused on corporations; however, Canada’s anti-foreign corruption statute—the Corruption of Foreign Public Officials Act (CFPOA)—applies to both individuals and organizations, including corporations. Moreover, section 22.2 of Canada’s Criminal Code extends criminal liability to corporations whenever a senior officer acting within the scope of their authority is party to an offense, directs representatives to commit an offense, or does not take reasonable measures to prevent the occurrence of a known offense. Corporations that are found guilty of violating the CFPOA or the Criminal Code can be subject to fines.
4. Can companies be held liable for acts of corruption under civil or administrative law?
Yes, in addition to criminal sanctions, corporations may face civil penalties, probation, forfeiture, disgorgement, and/or debarment. This notably includes a 10-year ineligibility to bid on contracts under the Canadian Federal Integrity Regime (if convicted of fraud or bribery). Corporations may also face civil liability for acts committed by their employees, including under the common law principle of vicarious liability.
5. Is corruption of individuals punishable?
Yes. Section 426(1) of the Criminal Code prohibiting secret commissions is dedicated to private corruption directed towards agents, which includes individual employees. In addition, the CFPOA refers to bribes directed at “any person.”
6. Are facilitation payments allowed?
No. An exception from liability concerning facilitation payments made to foreign officials was repealed from the CFPOA on October 31, 2017.
7. Is there a legal regulation/maximum limit for accepting or giving gifts, invitations, etc.?
The Criminal Code and the CFPOA do not include specific guidance with regard to gifts or hospitality. Therefore, a hospitality gift would be assessed by reference to the relevant corruption provisions, which use very broad language, namely a “reward, advantage, or benefit of any kind.” This means that corporate hospitality is a high risk area.
8. Are bribes to foreign government officials prohibited?
9. Does your legislation have any extraterritorial reach?
Yes. Generally, Canada has territorial jurisdiction over an offense when there is a “real and substantial link” between an offense and Canada. This can include Canada being the jurisdiction where the persons involved in the alleged offense are situated, being the place where the offense took place, where the unfair advantage was enjoyed, or where the evidence, victims, and witnesses are located.
However, the CFPOA, as amended in 2013, allows for the prosecution in Canada of acts committed abroad 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 an offense under the CFPOA. This provision essentially subjects all Canadian citizens and companies to global regulation by Canadian authorities under the CFPOA.
10. Is it possible to confiscate assets from the company?
Section 490.1 of the Criminal Code permits orders of forfeiture of offense-related property upon conviction of an indictable offense under the CFPOA.
11. Does your legislation rely on deferred prosecution or non-prosecution agreements or any other type of non-trial resolution for corruption?
Yes. Section 715.3 of the Criminal Code—which came into force in September 2018—provides for remediation agreements (the Canadian equivalent of deferred prosecution agreements) for certain offenses including fraud, municipal corruption, falsification of books and documents, secret commissions, money laundering, and the bribery of foreign public officials.
12. Can a company be liable for the acts of its intermediaries or third parties?
Companies can be held vicariously liable for acts of their employees and agents in Canadian common law provinces if the employee or agent was acting within the scope of their employment. This will be presumed where the act is a wrongful act authorized by the employer or if the employee or agent uses an unauthorized method to perform authorized duties.
13. Can a parent company be liable for the acts of its subsidiaries?
Yes. The CFPOA prohibits both direct and indirect benefits. A parent company could therefore be found indirectly liable for a benefit paid by a subsidiary. A parent company could also be found liable under the Criminal Code of aiding and abetting or counseling a CFPOA offense committed by a subsidiary.
14. Are there any affirmative defenses or exceptions for those accused of corruption acts?
The CFPOA contains exceptions if the benefit in question is permitted under the laws of the foreign state involved or if the benefit was made to pay for reasonable expenses incurred by the foreign public official. In addition, to the extent that conviction of a particular criminal offense requires proof of knowledge and intent, general criminal law defenses (such as duress and mistake of fact) may be invoked.]
15. Does your jurisdiction require domestic entities to implement anti-corruption internal programs?
16. Is having a compliance program a defense or mitigating factor, while reviewing sanctions?
Compliance programs reflect a commitment to a culture of ethics and compliance and could mitigate the effects of an investigation or charge. A robust compliance program could also serve as evidence when establishing a due diligence defense for a strict liability offense and could be relevant at sentencing. Moreover, implementing a compliance program may be considered relevant in assessing the scope of authorized acts when considering a corporation’s civil vicarious liability.
17. Could the cooperation with the authorities or an internal investigation be a defense or mitigating factor?
Cooperation with the authorities is a factor that prosecutors will consider when determining whether or not to enter into a remediation agreement. Cooperation is also a consideration under general sentencing principles for organizations.
18. Is there any publicly available guideline issued by the authorities in charge of enforcing anti-corruption laws? For example, manuals on compliance programs, leniency agreements, etc. If so, please provide the link.
No; however, an annual report is published by Global Affairs Canada detailing the implementation and enforcement of the CFPOA. These reports can be useful to companies seeking guidance on the application of the law.
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*Davies Ward Phillips & Vineberg LLP