The increased demand for transparency and accountability in far-reaching amendments to Canadian anti-corruption laws was a hot topic during the recent Association of Consulting Engineering Companies - Canada conference.
“Around the world, here in Canada, and in our own cities and towns, the fight against corruption, conflict of interest and ethical lapse is real,” said Guy Giorno, a partner with Fasken Martineau, who practices public law with an emphasis on accountability and ethics.
He was the keynote speaker at Summit 2013 in Lake Louise, Alberta, but delivered his address by Skype after being unable to attend due to flooding, mudslides and road closures.
Giorno focused on Bill S-14, which strengthened the Corruption of Foreign Public Officials Act (CFPOA) and became a new law on June 19.
“The CFPOA is the principle Canadian law aimed at bribery of foreign public officials for the purpose of obtaining or retaining business in foreign markets,” he said.
“First, the reach of the CFPOA has been extended. Now, Canada will be able to prosecute Canadian companies or Canadian citizens for offences under the CFPOA, wherever the offence is committed or wherever the Canadians live.”
Canada can prosecute Canadian companies, Canadian citizens and permanent residents in Canada after they have committed the offence of bribing a foreign public official, without having to provide evidence of a link between Canada and the offence.
Previously an offence under the CFPOA required that the crime be committed in whole or in part in Canada.
Giorno was extremely critical of an amendment that provides exclusive authority for the RCMP to lay charges.
“In every democracy with a British system of justice, the right of citizens to lay charges and prosecute as they wish is a bulwark against abuse and safeguards equality before the law,” he said.
“In countries where only the state can lay charges, the temptation is great that only the enemies of the state can be charged.”
According to Giorno, this is a serious problem because a citizen’s right to lay a charge when he or she has knowledge of an offence is more than 1,000 years old.
In fact, the right of private charges predates the Crown’s prosecution of criminal offences by several hundred years.
Another amendment increases the maximum jail term to 14 years, compared to five years’ imprisonment and unlimited fines, which was the previous penalty.
A new offence has been added, which prohibits certain bookkeeping practices and types of transactions for the purpose of bribing foreign public officials or hiding such bribery.
In addition, facilitation or grease payments have been eliminated.
This means it’s now illegal to expedite or secure 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. Previously, facilitation payments weren’t considered bribes.
In order for the consulting engineering sector to meet these new legal requirements, Giorno recommends that companies address five critical factors: people, structure, policy, process and culture.
“You can give your employees the strength and structure to resist that pressure by surrounding them with the right people, establishing a sound structure, adopting the right policies, implementing good process and maintaining the culture of compliance,” he said. “Addressing these factors in isolation is not enough to affect change and achieve success.”
Canada has stepped up its enforcement of the act following criticism from the Organization for Economic Cooperation and Development (OECD) for lack of prosecutions under its foreign anti-bribery legislation.
The CFPOA came into force in February 1999, in order to meet Canada’s obligations under the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions.
To date, there have been three convictions.
An OECD review in 2011 raised objections to the limits placed on the act’s jurisdictional reach, the insufficient number of investigators working to uncover bribery of foreign public officials and the lax penalties imposed upon conviction.