Addressing the Corruption of Foreign Public Officials: Developments and Challenges within the Canadian Legal Landscape

Abstract

With 2018 marking the twentieth anniversary of Canada’s Corruption of Foreign Public Officials Act, an opportunity presents itself to take stock of both developments and challenges for the legislative scheme. As demonstrated by a review of the parliamentary record, the desire to enact legislation to criminalize the offering of an inducement to a foreign public official to secure a business advantage was decidedly international in nature, with Canada aiming to bolster the efforts of others to create a level playing field for companies operating abroad. Yet, despite good intentions, as well as amendments to strengthen the Act in 2013 and the passage of additional transparency obligations in 2014, Canada’s legislative scheme has not kept pace with the international and multi-jurisdictional realities of the problem to be addressed. Renewed interest needs to be paid to the demand side of a foreign bribery transaction. In addition, the confiscation or forfeiture of any ill-gotten gains must become a priority, with the touting of success in securing the voluntary payment of sizeable fines failing to provide for a sufficient accounting for the wrongs done, particularly if the victims of corruption, even as a class that needs clearer definition, are to be made a true concern of the Act. The challenges posed by matters of immunity and the need to improve matters of multi-jurisdictional cooperation also need further attention.

How far are we from understanding corruption? The effect of cultural distance on corruption perception

“…For instance, two American countries, Canada and Brazil have been shaken with gigantic corruption scandals involving construction companies (SNC-Lavalin and Odebrect, respectively). In both cases, high-ranking government officials were involved in massive cover ups (Morales and Morales, 2019; Harrington, 2019), yet both countries are assessed differently in the CPI. Canada, culturally close to Denmark (distance of 89), is ranked 12th, while Brazil (distance of 182) is ranked 106th.…”

Local Communities and the Mining Industry

“…Canadian accountability mechanisms, policies & codes of conduct regarding foreign mining have evolved substantially since the late 1990s (See Figure 3.1). As one of the only binding legislations related to corporate accountability in Canada, the Corruption of Foreign Public Officials Act (1998) (CFPOA) makes it a criminal offence to bribe foreign public officials to gain business advantages (Harrington, 2019). The legislative scheme is primarily criticized for being a weak, deficient, and inadequately enforced legal mechanism (Mijares, 2014).…”

“…The legislative scheme is primarily criticized for being a weak, deficient, and inadequately enforced legal mechanism (Mijares, 2014). In conjunction with Canada's historically unresponsive judicial system to white-collar crime, only four convictions have been undertaken through CFPOA throughout the 23 years of this legislation's existence (Harrington, 2019).…”