Bribery (Foreign)

Under the Corruption of Foreign public officialSomeone holding a leadership position of a foreign jurisdictions Act, a person can face charges for directly or indirectly giving, offering, or agreeing to give any kind of benefit or advantage to a foreign public official to obtain or retain a business advantage. A person can also be prosecuted for accounting practices used to bribe a foreign official or to hide a bribe.

The Act can apply to conduct connected to Canada and, in some cases, conduct outside Canada that is covered by the Act's jurisdiction rules.

The Act came into effect in 1999 to carry out Canada's obligations under the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, often called the OECD Anti-Bribery Convention.

The CFPOA defines a foreign public official as:

a person who holds a legislative, administrative or judicial position of a foreign state; 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 established to perform a duty or function for the foreign state; or an official or agent of a public international organization formed by two or more states, governments or public international organizations.

Under the Act, a foreign state means any country other than Canada. It also includes political subdivisions of that country, the government and its departments or branches, and agencies of that country or its subdivisions.

A bribe does not have to be a large cash payment. It can include a gift, favour, advantage, or other benefit offered for a prohibited purpose.

According to the Canadian Bar AssociationProminent professional association for lawyers and judges., the Crown prosecutorA lawyer who conducts a criminal prosecution on behalf of the public. will only try cases with a “real and substantial” link to Canada. This means that to make it to a Canadian courtroom some aspect of the illegal activities must have been committed in Canada or had a measurable impact on Canadians.

To win a conviction for bribery, the Crown prosecutor must prove beyond a reasonable doubtThe standard that must be exceeded to find someone guilty that a bribe was offered and that offer was accepted. Actual money or gifts do not have to exchange hands to prove the offence took place. The Crown must show an illegal intent in the exchange. 

Payments that are legal in the country where they were received would not be considered a bribe. Also, depending on the circumstances, reasonable expenditures can be made in order to develop a business relationship.

If you have been charged with bribing an official under the Corruption of Foreign Public Officials Act, the Crown will proceed with the charge as an Indictable offenceA more serious type of Canadian criminal offence. and you and/or your company officials face imprisonment and/or a fine if convicted.

The penalty for bribery will depend on the circumstances of the case. You can be jailed upon conviction with prison terms of up to 14 years. The company you control or work for can also face fines. The amount of the fine is at the discretion of the court.

Section 3(3) of the Act sets out a limited saving provision — for example, where the payment was lawful under the foreign state's own laws, or covered reasonable, good-faith expenses directly related to promoting the business. It is narrow and fact-specific.

This Act applies to bribery of foreign public officials. Bribery of Canadian officials is covered by the Criminal Code — see the Bribery (Domestic) page.