1. Bribery in the home (private to public)
1.1 The Legal Environment
The Criminal Code, RSC 1985, c C-46, contains anti-bribery provisions in Canada. Sections 119 through 125 of the Criminal Code provide a series of bribery, corruption, and “influence peddling” offenses that cover the provision of bribes, benefits, and advantages to Canadian government officials. If granted in violation of the Criminal Code of Canada, all benefits given to Canadian public officials are prohibited.
1.2 What does bribery mean?
Section 121 of the Criminal Code makes it illegal to: I give or offer to give a loan, reward, advantage, or benefit of any kind to an official in exchange for cooperation, assistance, exercise of influence, or an act or omission in connection with the transaction of business or any matter of business relating to the government, or a claim against the government, or (ii) give or offer to give a loan, reward, advantage, or benefit of any kind to an official in exchange for cooperation, assistance,
1.3 What does it mean to be a public official?
For the purposes of the Criminal Code, a “official” is someone who has a position or is appointed or elected to perform a public function. A government office or appointment, a civil or military commission, and a job or job in a public department all fall under the term “office.” The term “government” refers to the federal government, the government of a Canadian province, or Her Majesty in Right of Canada or a province. As a result, the term “official” in this context is broad enough to cover those who work for government-controlled businesses.
1.4 Bribery and its Consequences
Potential punishments under the Criminal Code’s anti-bribery provisions include fines of any amount and imprisonment for up to 14 years. Officials and employees can be held personally accountable for crimes committed by “senior officers,” and companies can be held accountable as parties. In proper situations, the conduct of middle management are sufficient to hold a firm criminally accountable.
In two ways, a firm can be held accountable for the actions of its agents and contractors:
For starters, the corporation may be aware that an agent is planning to pay a bribe but fails to take all reasonable steps to prevent the agent from doing so.
Second, if an agent or contractor is entrusted administration of a significant component of the company’s operations, the agent may become a member of the class of senior officers who bind the company in criminal law, even if the company’s executives are uninformed of the agent’s involvement.
There is no time limit for filing a lawsuit.
1.5 Contributions from politics
Payments to political parties and candidates are governed by federal and provincial laws, which set very low yearly contribution limits and prohibit contributions from businesses, trade unions, associations, and organisations.
1.6 Hospitality expenses are subject to a limit (gifts, travel, meals, entertainment, among others)
Gifts, hospitality, and other perks to public officials are permitted if they are given outside of contractual negotiations and in compliance with any applicable conflict of interest laws and codes of conduct. Because the relevant laws and ordinances do not set any cash restrictions, there is significant uncertainty about a specific ceiling beyond which gifts and hospitality might be considered undesirable. Much will be determined by the situation. Gifts, hospitality, or other benefits arising from activities associated with the performance of a public official’s duties may, in general, be acceptable if they are within the bounds of propriety, a normal expression of courtesy, or within the normal standards of hospitality; are not such as to cast doubt on the recipient’s objectivity; and are not such as to instill suspicion in the recipient’s objectivity.
Note that if the total value of all gifts, hospitality, or other advantages received by a federal public official in Canada exceeds a specific threshold, the public official may be required to record it by filing a public statement in a public registry (e.g., CAD 200 from any one source in a 12-month period).
2. Bribery in the home (private to private)
2.1 The Legal Environment
Bribery rules in Canada primarily apply to public officials rather than private sector transactions.
2.2 What is bribery in the private sector?
However, in the context of agency partnerships, Section 426 of the Criminal Code specifies the offence of corruptly giving “hidden commissions,” and the general law of fraud extends more broadly to any business transaction. It is prohibited, for example, if an agent receives a commission for referring business to a company and does not inform the agency’s principal.
2.3 Private bribery’s ramifications
Violation of the following restriction against “secret commission” or criminal fraud can result in penalties comparable to those previously stated in relation to domestic bribery, but with a more limited application (private to public).
2.4 Hospitality expenses are subject to a limit (gifts, travel, meals, entertainment, among others)
There are no limitations or norms in relation to hospitality in this context due to the lack of a bribery statute applicable to business bribery (i.e., not involving public or government interests).
3. Foreign public officials’ corruption
3.1 The Legal Environment
The Corruption of Foreign Public Officials Act, SC 1998, c 34 (CFPOA), governs corruption involving foreign public officials. It covers Canadian citizens, permanent residents, businesses and other organizations incorporated or created in Canada, as well as people from all over the world whose actions or omissions have a “real and substantial link” to Canada. The CFPOA also includes a “books and records” offence, which requires all transactions and expenditures to be fully and accurately identified in the books and records.
3.2 Definition of foreign public officials’ corruption
It is illegal to directly or indirectly provide, offer, or promise to give or provide a loan, reward, advantage, or benefit of any type to a foreign public official or to any individual for the benefit of a foreign public official in order to achieve or keep an advantage in the course of business:
(a) to entice the official to use his or her position to influence any acts or decisions of the foreign state or public international organization for which the official performs duties or functions; or (b) to entice the official to use his or her position to influence any acts or decisions of the foreign state or public international organization for which the official performs duties or functions.
3.3 Explanation of the term “foreign public official”
A person who holds a legislative, administrative, or judicial position in a foreign state is a foreign public official; a person who performs public duties or functions for a foreign state is a foreign public official, including a person employed by a board, commission, corporation, or other body or authority that is established to perform a duty or function on behalf of the foreign state, or is performing such a duty or function.
It’s worth noting that the definition excludes members of political parties that aren’t in power (i.e., opposition parties), however in this case, care is advised.
To show a breach of the CFPOA, it is not essential to prove that a bribe was given to a foreign official; it is sufficient for the party to think that a bribe was given to such an official. When it comes to CFPOA violations, the concept of conspiracy comes into play. When there is a conspiracy, the prosecution does not have to show the identity of the intended bribe receiver because that could put foreign nationals in danger.
Furthermore, the idea of wilful blindness extends to the level of purpose required, and imputes knowledge to an accused whose suspicions have been aroused to the point where he or she recognizes the need for additional inquiries but chooses to ignore them.
3.4 Consequences of foreign public officials’ corruption
Fines of an infinite sum and imprisonment for up to 14 years are possible punishment under the CFPOA. Officials and employees can be held personally accountable for crimes committed by “senior officers,” and companies can be held accountable as parties. In proper situations, the conduct of middle management are sufficient to hold a firm criminally accountable.
In two ways, a firm can be held accountable for the actions of its agents and contractors:
For starters, the corporation may be aware that an agent is planning to pay a bribe but fails to take all reasonable steps to prevent the agent from doing so.
Second, if an agent or contractor is entrusted administration of a significant component of the company’s operations, the agent may become a member of the class of senior officers who bind the company in criminal law, even if the company’s executives are uninformed of the agent’s involvement.