Rising From The Dead: Anti-Corruption Enforcement In Canada

by Michael Volkov
Contact

http://corruptioncrimecompliance.com/wp-content/uploads/2012/12/imagesCAAUCDZV.jpgI find the so-called “vampire” cultural phenomena scary – I do not understand what is so entertaining about “ordinary” people who can suddenly turn into vampires, let alone enter into “serious” relationships with each other or with so-called “normal” humans.

Maybe I am stuck in the past when “Night of the Living Dead” was more my cup of tea.  Whatever your attitude toward death and the dark side, the analogy of “rising from the dead” certainly applies to Canadian anti-corruption enforcement – you have to give me some credit for the turn of phrase on these ideas!

Sometimes the prognosticators can get it right.  Canada has been the frequent “black sheep” of G-7 anti-corruption enforcement.  The Organization for Economic Co-Operation and Development (OECD) and Transparency International often cite Canada for its lackluster enforcement of anti-corruption laws and adherence to the Anti-Corruption Convention. 

Over the last few years, Canada trumpeted its new, aggressive anti-corruption enforcement program.  In 2008, the Royal Canadian Mounted Police established two new offices in Canada in Ottawa and Calgary dedicated to anti-corruption enforcement.  The RCMP has played an active role in World Bank meetings devoted to improving global coordination among law enforcement and anti-corruption investigators.

An often cited “fact” in the last few years was that Canadian law enforcement had approximately 20 pending anti-corruption investigations/cases.  Recently, the RCMP confirmed that it had 34 active investigations/cases, an increase of 14 or 70 percent, in enforcement activity.

Canadian resource companies are most at risk for enforcement.  They are dependent on foreign governments for their livelihoods and are regularly interacting with foreign officials. 

Recently, Canadian law enforcement officers conducted raids at SNC-Lavalin offices in Canada, and a high-ranking officer was arrested in Switzerland related to this ongoing investigation. 

Last year, Canadian law enforcement assisted in the raids of a Canadian company’s offices in Mexico related to an investigation of alleged bribes made to a Mexico mayor. 

Canada’s Corruption of Foreign Public Officials Act (“CFPOA”), which was adopted in 1999, is modeled after the US FCPA with two significant exceptions.  First, the CFPOA does not include a “books and records” requirement like the FCPA.  Second, the CFPOA has a more restrictive jurisdictional reach which is keyed to a “real and substantial connection” to Canada. 

The CFPOA prohibits, in order to obtain or retain business or to retain or obtain an advantage in the course of business, the offering, giving, or agreeing to give or offer a loan, reward, advantage, or benefit of any kind, directly or indirectly, to a Foreign Official, or to any person for the benefit of a Foreign Official, (1) as consideration for an act or omission by the Foreign Official in connection with the performance of the Foreign Official’s duties or functions; or (2) to induce the Foreign Official to use his or her position to influence any acts or decisions of the foreign state or public international organization for which the Foreign Official performs duties or functions.   

While the CFPOA does not contain a specific provision requiring a company to maintain accurate books and records, Canadian companies must comply with the Canada Business Corporations Act and provincial corporate and taxation statutes and securities laws requiring that companies keep accurate books and records and that financial statements be prepared in accordance with generally accepted accounting principles.

Payments through third parties with the corporation’s knowledge that some or all of the payments will improperly go directly or indirectly to a Foreign Official or private person are also prohibited. 

It is not necessary to have actual knowledge that an improper payment will be made to a person by a third party.  Deliberate ignorance or conscious disregard of the facts can also constitute knowledge of a payment.  Thus, it is important for a company to conduct “due diligence” of third parties (i.e. reasonable inquiries) when retaining third parties.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Michael Volkov, The Volkov Law Group | Attorney Advertising

Written by:

Michael Volkov
Contact
more
less

The Volkov Law Group on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.
Feedback? Tell us what you think of the new jdsupra.com!