Canada
Answer ... Section 3(1) of the Corruption of Foreign Public Officials Act (CFPOA) defines the offence of ‘bribing a foreign public official’ as follows:
Every person commits an offence who, in order to obtain or retain an advantage in the course of business, directly or indirectly gives, offers or agrees to give or offer a loan, reward, advantage or benefit of any kind to a foreign public official or to any person for the benefit of a foreign public official
- As consideration for an act or omission by the official in connection with the performance of the official’s duties or functions; or
- To induce 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.
The Criminal Code defines ‘bribery’ as “directly or indirectly, corruptly accepting, obtaining, agreeing to accept or attempting to obtain, for themselves or another person, any money, valuable consideration, office, place or employment”. This definition can be found in Sections 119 (bribery of judicial officers) and 120 (bribery of officers).
Canada
Answer ... The CFPOA defines a ‘foreign public official’ as:
- a person who holds a legislative, administrative or judicial position of a foreign state (ie, a country other than Canada);
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a person who performs public duties or functions for a foreign state, including a person employed by a board, commission, corporation or other body or authority that is:
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- established to perform a duty or function on behalf of the foreign state; or
- performing such a duty or function; and
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an official or agent of a public international organisation that is formed by:
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- two or more states or governments; or
- two or more such public international organisations.
For the purposes of the Criminal Code provisions:
- an ‘official’ is a person who holds an office or is appointed or elected to discharge a public duty;
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the term ‘office’ includes:
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- an office or appointment under the government;
- a civil or military commission; and
- a position or employment in a public department; and
- the term ‘government’ includes:
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- the government of Canada;
- the government of a province of Canada; or
- the king in right of Canada or a province.
Canada
Answer ... These offences are primarily addressed under the Criminal Code. Section 426 defines the offence of corrupt ‘secret commissions’ in the context of agency relationships as follows:
Directly or indirectly, corruptly giving, offering, or agreeing to give or offer to an agent or to anyone for the benefit of the agent any reward, advantage or benefit of any kind as consideration for doing or not doing any act relating to the affairs or business of the agent’s principal, or for showing or not showing favour or disfavour to any person with relation to the affairs or business of the agent’s principal; or
With intent to deceive a principal, gives to an agent of that principal, an account or other writing in which the principal has an interest, that contains any statement that is false or erroneous or defective in any material particular, and that is intended to mislead the principal.
This offence applies to both the giver and the receiver of the bribe.
The Criminal Code identifies additional corrupt practices which apply to private sector interactions, including fraud (Section 380) and money laundering (Section 462.31).
Canada
Answer ... The CFPOA defines a ‘bribe’ as “giving, offering or agreeing to give, directly or indirectly, a loan, reward, advantage or benefit of any kind to a foreign public official or to any person for the benefit of a foreign public official”:
- in consideration for an act or omission by the official in connection with the performance of his or her duties or functions; or
- to induce the official to use his or her position to influence any acts or decisions of the foreign state or public international organisation for which he or she performs duties or functions.
Section 119 of the Criminal Code defines ‘bribery of a judicial officer’ as “giving, offering, or agreeing to give or offer a loan, reward, advantage, or benefit of any kind, directly or indirectly, to a public official or to any person for the benefit of a public official” in respect of anything done or omitted to be done or omitted by the public official in his or her official capacity.
Section 120 defines ‘bribery of an officer’ as:
directly or indirectly, corruptly accepting, obtaining, agreeing to accept or obtain, for themselves or another person, any money, valuable consideration, office, place or employment with intent to interfere with the administration of justice, to procure or facilitate the commission of an offence, or to protect from detection or punishment a person who has committed or who intends to commit an offence.
These definitions apply to both the giver and the receiver of the payment or benefit.
Canada
Answer ...
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CFPOA:
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- fraudulent, false and inadequate record-keeping for the purpose of bribing a foreign public official (Section 4).
- Criminal Code:
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- frauds on the government (Section 121);
- breach of trust by a public officer (Section 122);
- municipal corruption (Section 123);
- selling or purchasing an office (Section 124);
- influencing or negotiating appointments or dealing in offices (Section 125);
- money laundering (Section 462.31);
- fraud (Section 380);
- attempting to commit criminal offences (Section 463); and
- conspiracy to commit criminal offences (section 465).
The Criminal Code identifies other offences which may overlap with anti-corruption violations, including:
- theft;
- mischief; and
- possession of property obtained by crime.
Canada
Answer ... Yes, both individuals and companies can be prosecuted under the CFPOA and the Criminal Code. The CFPOA adopts the definition of ‘person’ outlined in Section 2 of the Criminal Code, which includes:
- individuals;
- the king; and
- organisations.
Under the Criminal Code, the same definition applies to ‘every one’.
Thus, under every section where an offence is defined by the acts of a ‘person’ (or ‘every one’ under the Criminal Code), both individuals and companies that commit those acts may be prosecuted. These sections include the following:
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Corruption of Foreign Public Officials Act:
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- bribery of foreign public officials (Section 3); and
- fraudulent, false and inadequate record keeping for the purpose of bribing foreign public officials (Section 4).
- Criminal Code:
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- bribery of judicial officers (Section 119);
- bribery of officers (Section 120);
- frauds on the government (Section 121);
- municipal corruption (Section 123);
- selling or purchasing office (Section 124);
- influencing or negotiating appointments or dealing in offices (Section 125);
- secret commissions (Section 426);
- money laundering (Section 462.31);
- fraud (Section 380);
- attempts to commit criminal offences (Section 463); and
- conspiracy to commit criminal offences (Section 465).
Canada
Answer ... Yes, foreign companies can be prosecuted under the CFPOA and/or the Criminal Code, as long as a significant portion of the activities constituting the offence took place in Canada such that there is a ‘real and substantial link’ between Canada and the offence. Whether a real and substantial link exists is a fact-specific inquiry. For the purpose of this inquiry, the link between Canada and the offence can include both the illegitimate and the legitimate elements of the impugned transaction.
Canada
Answer ... Yes. Generally, Canada has territorial jurisdiction over an offence where there is a ‘real and substantial link’ between Canada and the offence.
More specifically, Section 5 of the CFPOA makes it an offence to commit an act or omission outside Canada that, if committed in Canada, would constitute an offence under Section 3 or 4 (bribery and accounting offences, respectively). Pursuant to Section 5(2), if a person is alleged to have committed an act or omission that is deemed to have been committed in Canada, proceedings for an offence in respect of that act or omission may be commenced in any territorial division in Canada, whether or not that person is in Canada. That person may be tried and punished for that offence as if the offence had been committed in that territorial division.
Section 481.2 of the Criminal Code grants jurisdiction over offences occurring outside of Canada except where otherwise prevented by acts of Parliament. This section applies only in conjunction with another act of Parliament conveying jurisdiction; it does not provide freestanding authority to assert jurisdiction. Notwithstanding this limitation, Canadian criminal courts do have jurisdiction in the following circumstances, among others:
- where public service employees commit indictable offences outside of Canada while employed; and
- where Canadian citizens, permanent residents or individuals ordinarily resident in Canada commit offences including fraud and money laundering in relation to ‘cultural property’.