Yes Santa Claus, there is Anti-Corruption Enforcement in Canada

Transcription

1 Yes Santa Claus, there is Anti-Corruption Enforcement in Canada Presenter: Iris Fischer Blakes Toronto, Canada Moderator: Claire J. Rauscher Womble Carlyle Charlotte, NC

2 Canadian Business Crimes in the News Canadian Police Charge SNC-Lavalin With Corruption, Fraud: Engineeringconstruction company says charges are without merit (The Wall Street Journal, February 19, 2015) Mike Duffy, a Canadian Senator, Is Cleared of 31 Corruption Charges (The New York Times, April 21, 2016) Corruption Was Rife in Quebec s Public Construction Contracts, Panel Says: Superior Court Justice France Charbonneau, who led four-year inquiry, releases report (The Wall Street Journal, November 24, 2015) Valeant shares plunge after report of criminal probe (The Globe and Mail, August 10, 2016) Canada Strengthens Anti-Corruption Law (The Wall Street Journal, June 21, 2013)

3 Canadian Business Crimes Trends Canada / US Significant Differences in Procedure Anti-Corruption Enforcement Trends Québec Specificities CFPOA / FCPA Distinctions Anti-Bribery Policies & Procedures Anti-Corruption Due Diligence

4 Recent Trends: Enforcement Canadian federal authorities (RCMP) and Crown prosecutors have made clear their intention to reverse the historic lack of enforcement of the Canadian anti-corruption laws by aggressively investigating and prosecuting violations of the CFPOA going forward: 2011: Niko Resources Ltd. ($9.5 million criminal penalty); 2013: Griffiths Energy International Inc. ($10.35 million criminal penalty); 2014: Nazir Karigar (first conviction of an individual in Canada). The RCMP have a number of ongoing investigations including: 2015 charges against a major Canadian engineering company and its affiliated entities with one count of corruption under the CFPOA and one count of fraud under the Criminal Code for business dealings in Libya. Former executives of the Company have also been charged with involvement in Libya and Bangladesh. The RCMP and Crown prosecutors have clearly evidenced their intention to prosecute senior officers who engage in corrupt practices as aggressively as the corporations for which they work.

5 Corruption of Foreign Public Officials Act Prohibits bribery of foreign public officials by criminal sanction Penalties for breach include: Imprisonment for up to 14 years for individuals Unlimited fines Probation for corporations, including monitoring and compliance conditions Forfeiture of all proceeds not just profits of any contract obtained by corruption Significant reputational and business losses No limitation period Effect of 2013 amendments is that the CFPOA applies to worldwide conduct of Canadian citizens and companies

6 Corruption of Foreign Public Officials Act New offence for concealing bribery in accounting records 3 exceptions to the CFPOA bribery offence: 1. Payments permitted under the laws of the foreign state 2. Reasonable expenses incurred by or on behalf of the foreign public official that are directly related to: the promotion, demonstration or explanation of your products or services, or the execution or performance of a contract with the foreign official s state 3. Facilitation payments (being phased out) Canada does not have any formal self-reporting regime. Additionally, mechanisms such as deferred prosecution agreements, or civil resolutions options are not available in Canada.

7 Canadian Domestic Anti-Corruption Laws Aside from compliance with international anti-corruption legislation, need to also ensure compliance with Canadian domestic anticorruption legislation The Canadian Criminal Code contains provisions that go beyond the FCPA, CFPOA or Bribery Act The Criminal Code (s.121(1)(b)) makes it an offence to provide a benefit to a government official with which a company or individual has business dealings No requirement that the benefit be provided in exchange for anything Exception: written pre-approval from the official's superior

8 Canadian Domestic Anti-Corruption Laws The Criminal Code also contains offence provisions that penalize: the provision of benefits to a government official in exchange for favourable treatment; payment of a secret commission to an agent in exchange for the agent acting in respect of the affairs of its principal (an offence which applies equally to public and private industry)

9 Self-Reporting in Canada Self-reporting considerations No formal self-reporting credits No civil resolution options no deferred prosecution agreements Québec legislation

10 Doing Business with Government in Canada Infrastructure spending to rise at expense of Ottawa s bottom line (The Globe and Mail, November 1, 2016) Doing Business with the Canadian Government Rules & Guidelines for Suppliers Permits & Debarment