February 5, 2013 - Foreign Affairs Minister John Baird today announced that the Harper government is taking further steps to combat corruption and bribery by tabling amendments to the Corruption of Foreign Public Officials Act in the Senate. He delivered the following remarks in Ottawa:
“Our government’s top priority is securing jobs, growth and long-term prosperity. In our international dealings, this takes many forms.
“It involves positioning Canada as a reliable supplier of the resources emerging markets need to grow.
“It involves pursuing an aggressive, pro-trade agenda.
“It involves creating the conditions for Canadian businesses to succeed.
“But our government also expects Canadian business to play by the rules.
“Canadian companies can compete with the best and win fairly.
“To signal our commitment and our expectation that other countries do the same, I am pleased to announce that our government is redoubling our fight against bribery and corruption.
“Today, reforms are being introduced in the Senate that will further deter and prevent Canadian companies from bribing foreign public officials. These amendments will help ensure that Canadian companies continue to act in good faith in the pursuit of freer markets and expanded global trade.
“Canada is a trading nation. Our economy and future prosperity depend upon expanding our trade ties with the world. This, we hope, is a good faith sign that Canada’s good name retains its currency.”
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A backgrounder follows.
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The Corruption of Foreign Public Officials Act (CFPOA) makes it a criminal offence in Canada for persons or companies to bribe foreign public officials to obtain or retain an advantage in the course of international business. The act was created as a result of Canada’s obligations under the Organization of Economic Co-operation and Development’s (OECD’s) Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, which Canada ratified in 1998. The CFPOA is also the implementing legislation for Canada’s anti-corruption obligations under the United Nations Convention against Corruption and Inter-American Convention against Corruption.
In 2008, the Royal Canadian Mounted Police (RCMP) established the International Anti-Corruption Unit, which is dedicated to raising awareness about and enforcing the CFPOA. To date, three companies have been convicted under the act, two cases are pending and there are 35 ongoing investigations under the CFPOA.
The proposed amendments to the act include the following:
- Nationality jurisdiction: This amendment will make it easier for Canada to prosecute Canadians or Canadian companies for bribery in other countries, insofar as it will allow the Government of Canada to exercise jurisdiction over all persons or companies that have Canadian nationality, regardless of where the alleged bribery has taken place.
- Eventual elimination of facilitation payments: The act currently states that payments made to expedite or secure the performance by a foreign public official of any act of a routine nature that is part of the foreign public official’s duties or functions do not constitute bribes. This amendment will eliminate the exception for facilitation payments and will come into effect at a later date to be set by Cabinet.
- Exclusive ability to lay charges: This amendment will provide exclusive authority to the RCMP to lay charges under the act.
- Clarifying the definition of “business”: This amendment removes the words “for profit” in the definition of business to ensure that the act applies to all business, regardless of whether profit is made.
- Increasing the maximum penalty: Under the act, the foreign bribery offence is currently punishable by a maximum of five years’ imprisonment and unlimited fines. This amendment will increase the maximum jail term to 14 years.
- Books and records offence: This amendment adds a new books and records of account offence into the act that is restricted in scope to the bribery of foreign public officials or hiding such bribery. This offence will now be punishable by a maximum of 14 years’ imprisonment and unlimited fines.
To date, there have been three convictions under the CFPOA:
- Griffiths Energy International Inc. – Griffiths Energy International Inc., based in Calgary, Alberta, pleaded guilty on January 22, 2013, to a charge under the CFPOA related to securing an oil and gas contract in Chad. Griffiths acknowledged having committed to paying $2 million in cash and millions in shares in exchange for exclusive access to resources in two regions. After providing the Chad government with a $40 million signing bonus, Griffiths was awarded the resources rights. Griffiths will pay a total penalty of $10.35 million.
- Niko Resources Ltd. – Niko Resources Ltd. is a publicly traded company based in Calgary, Alberta. On June 24, 2011, the company entered a guilty plea for one count of bribery. The company admitted that, through its subsidiary Niko Bangladesh, it provided the use of a vehicle (valued at $190,984) in May 2005 to AKM Mosharraf Hossain, then the Bangladeshi State Minister for Energy and Mineral Resources, in order to influence the minister in his dealings with Niko Bangladesh. In June 2005, Niko Resources Ltd. paid travel and accommodation expenses for the same minister to travel from Bangladesh to Calgary to attend the GO EXPO oil and gas exposition, and paid approximately $5,000 for the minister to travel to New York and Chicago to visit his family.
- As a result of the conviction, Niko Resources Ltd. was fined $9.5 million and placed under a probation order, which puts the company under the court’s supervision for three years to ensure that audits are completed to examine the company’s compliance with the CFPOA. The Canadian Trade Commissioner Service has placed a hold on providing services to Niko during the period of court supervision.
- Hydro-Kleen Group Inc. – Hydro-Kleen Group Inc., based out of Red Deer, Alberta, entered a guilty plea on January 10, 2005, to one count of bribery and was ordered to pay a fine of $25,000. Along with its president and an employee, the company had been charged with two counts of bribing a U.S. immigration officer who worked at the Calgary International Airport. The charges against the director and the officer of the company were stayed. The U.S. immigration officer pleaded guilty in July 2002 to accepting secret commissions. He received a six-month sentence and was subsequently deported to the United States.
For more information, see the Corruption of Foreign Public Officials Act and Canada’s Fight against Foreign Bribery.
