QUICK TAKEAWAY
Bribery (Foreign): Canada has two different laws to deal with the offence of bribing an official depending on where the offence occurred. Domestic bribery and corruption is covered by the Criminal Code starting at s.120. Foreign bribery is governed by the Corruption of Foreign Public Officials Act (CFPOA). If you bribe or attempt to bribe a foreign official to gain some kind of influence, valuable consideration or advantage you can face prosecution. Bribery is a serious crime that could land you in prison for up to 14 years.
Table of Contents:
What is Bribery of a Foreign Official?
Under the Corruption of Foreign Public Officials Act you can face charges if you directly or indirectly give, offer or agree to give or offer any form of benefit or advantage to a Foreign public officialSomeone holding a leadership position of a foreign jurisdiction to obtain an advantage in the course of business. You can also be prosecuted for establishing or maintaining accounting practices that are used to bribe a foreign official or to conceal a bribe. You can be living abroad or in Canada and face prosecution under the CFPOA.
The Act came into effect in 1999 to address Canada’s obligations under the United Nation’s Convention against Corruption and the Inter-American Convention against Corruption and is enforced by the Royal Canadian Mounted Police.
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 that is established to perform a duty or function on behalf of the foreign state, or is performing such a duty or function; and
- an official or agent of a public international organization that is formed by two or more states or governments, or by two or more such public international organizations.
Under the Act a foreign state is any country other than Canada and includes any political subdivision of that country; the government and any department or branch of that country or of a political subdivision of that country; and any agency of that country or of a political subdivision of that country.
A bribe does not have to be of significant monetary value. Gifts and money may not even be involved. A bribe can also be the promise of a favour such as a social or political benefit in return for a prohibited action.
What is Needed to Convict
According to the Canadian Bar AssociationProminent professional association for lawyers and judges., the Crown prosecutorLawyers who prosecutes charges on behalf of the Crown 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 doubt 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. So called facilitation or “bribe-type” payments to expedite routine government actions may be used as a defence against the charge.
Treated as an Indictable Offence
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 offenceIndictable offences are more-serious criminal offences and you and/or your company officials face imprisonment and/or a fine if convicted.
Penalties for Bribery
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.
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Glossary of Legal Terms
Canadian Bar Association
The leading professional association for lawyers, judges, notaries, law teachers and law students in Canada.
Crown prosecutor
Lawyers who act for the federal, provincial and territorial governments and prosecute people accused of crimes on behalf of the Crown.
Foreign public official
Can include a person who holds a legislative, administrative or judicial position of a foreign jurisdiction. The Corruption of Foreign Public Officials Act makes is a crime to bribe them.
Indictable offence
Indictable offences are the most serious offences under the Criminal Code and they come with more serious punishments, up to a maximum penalty of life in prison.
