5.8 Corruption of Foreign Public Officials

Public Prosecution Service of Canada Deskbook

Guideline of the Director Issued under Section 3(3)(c) of the Director of Public Prosecutions Act

March 1, 2014

Table of Contents

• 1. Introduction
• 2. Purpose of the Guideline
• 3. Application of the Guideline
  • 3.1. Coordination
  • 3.2. The decision to initiate a prosecution or refuse to prosecute
  • 3.3. Annual report

1. Introduction

On December 17, 1997, Canada signed the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (the Convention), an initiative arising primarily from work done by the Organization for Economic Co-operation and Development (OECD). Canada ratified the Convention on December 17, 1998.

To implement the terms of the Convention, Parliament passed the Corruption of Foreign Public Officials Act (CFPOA)^{Footnote 1} which came into force on February 14, 1999. The CFPOA essentially prohibits giving, offering or agreeing to give or offer any benefit, directly or indirectly, to a foreign public official for the purpose of obtaining or retaining an advantage in the course of business. For a detailed description of the CFPOA please refer to the document published by the Department of Justice entitled The Corruption of Foreign Public Officials Act: A Guide, 1999^{Footnote 2}.

Significant amendments to the CFPOA were made in June of 2013,^{Footnote 3} including:

• 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;^{Footnote 4}
• removal of the concept of “for profit” from the definition of business; and
• the future removal of the facilitation payment^{Footnote 5} exception under the Act.

Additionally, the Royal Canadian Mounted Police will now have the exclusive authority to lay charges under the CFPOA.

2. Purpose of the guideline

The purpose of the guideline is to ensure the effective coordination of prosecutions under the CFPOA and to call attention to unique aspects of the Act and the Convention.

3. Application of the guideline

3.1. Coordination

Given the inherent international dimension of prosecutions under the CFPOA and the potential impact on Canada’s relationship with other states, it is essential to coordinate prosecutions under the Act at a national level. Accordingly, Chief Federal Prosecutors (CFP) shall notify the Deputy Director of Public Prosecutions (Deputy DPP) of the Regulatory and Economic Prosecution and Management Branch of all requests for advice in relation to investigations, any prosecutions initiated and all developments in relation to cases involving the CFPOA.

Headquarters counsel are available to provide support to Regional Offices in the form of subject matter expertise in relation to the interpretation of the CFPOA, sentencing considerations, comparable foreign statutes and consultation with other government departments as required.

3.2. The decision to initiate a prosecution or refuse to prosecute

Like any decision regarding whether or not to prosecute, prosecutions under the CFPOA must be instituted or refused on a principled basis and must be made in accordance with the guideline “2.3 Decision to Prosecute”. In particular, Crown counsel should be mindful of s. 5 of the Convention which states:

5. Investigation and prosecution of the bribery of a foreign public official shall be subject to the applicable rules and principles of each Party. They shall not be influenced by considerations of national economic interest, the potential effect upon relations with another State or the identity of the natural or legal persons involved.

Crown counsel should record in writing the reasons for deciding or declining to institute proceedings. Such reasons may be highly relevant in dispelling any suggestion of improper political concerns influencing prosecutorial decision-making.

Where there is disagreement between the police and prosecutors over the merits of a particular prosecution based on the assessment of sufficiency or the evidence or the public interest criteria, Crown counsel should notify the Deputy DPP at the earliest opportunity in order to resolve the matter.

3.3. Annual report

A unique aspect of the CFPOA is the reporting requirement imposed by s. 12 of the Act, which states:

12. Within four months of the end of each fiscal year, the Minister of Foreign Affairs, the Minister for International Trade and the Minister of Justice and Attorney General of Canada shall jointly prepare a report on the implementation of the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, and on the enforcement of this Act, and the Minister of Foreign Affairs shall cause a copy of the report to be laid before each House of Parliament on any of the first fifteen days on which that House is sitting after the report is completed.

Public Prosecution Service of Canada (PPSC) counsel must maintain information in prosecution files sufficient to enable the Minister of Justice and Attorney General to make such a report. To that end, on or before January 31^st of each year, the CFP in each region, shall forward to the Deputy DPP a report on activities with respect to the provisions of the CFPOA covering the previous year. The report shall detail:

1. the nature and status of any prosecutions undertaken by the PPSC pursuant to the provisions of the CFPOA or the Criminal Code;
2. the nature and status of any other proceedings taken pursuant to the CFPOA or the Criminal Code to which the Attorney General is a party, such as seizure of assets.

The Deputy DPP shall collate the information and provide it to the Senior General Counsel (Criminal Law Policy Section) in the Department of Justice to assist that section in preparing the Minister of Justice and Attorney General’s contribution to the report.