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Report No. 258

C. Canada34

34 The information on Canada has been taken from the Executive summary on Canada, Note by the Secretariat, Fifth Session of the Implementation Review Group, Conference of the States Parties to the United Nations Convention Against Corruption, UN Doc. No. CAC/COSP/IRG/I/3/1/Add.8 (2014); see also Report of Transparency International Canada Inc., 'UNCAC Implementation Review: Civil Society Organization Report' (2013), available at
https://www.bennettjones.com/uploadedFiles/Publications/Articles/UNCAC_Review_TI-Canada.pdf,
last visited on 8th August, 2015.

3.4.1 Canada signed the UNCAC in 2004 and ratified it in 2007. The laws that implement the obligations of Canada under the UNCAC include Criminal Code, Corruption of Foreign Public Officials Act, Proceeds of Crime (Money Laundering) and Terrorist Financing Act, and the Mutual Legal Assistance in Criminal Matters Act. The body responsible for checking corrupt conduct is the Royal Canadian Mounted Police ("RCMP").

3.4.2 In the context of clauses (a) and (b) of Article 15, sections 119 (bribery of judicial officers), 120 (bribery of officers), 121 (frauds on the government), 122 (breach of trust by public officer), 123 (municipal corruption), 124 (selling or purchasing office), 125 (influencing or negotiating appointments or dealing in offices) and 426 (secret commissions) of the Canadian Criminal Code outlaw the offer and acceptance of bribery by Canadian officials.

As noted in the Country Review Report on Canada, the legal framework on bribery under the Criminal Code is compliant with Canada's obligations under Article 15. In this regard, the definition of an official under section 118 is broad in scope, and includes all persons who perform public duties.

3.4.3 In the context of paragraph 1 of Article 16, Canada penalises active bribery of foreign public officials and officials of public international organisations under section 3 of the Corruption of Foreign Public Officials Act ("CFPOA"). In fact, under the provisions of CFPOA, it is also possible to prosecute an individual for conspiracy or attempt to commit bribery, along with aiding and abetting in the commission of bribery, an intention in common to commit bribery, and counselling others to commit bribery.

Passive bribery of foreign public officials and officials of public international organisations as mentioned under paragraph 2 of Article 16 is not penalised under the CFPOA. However, the manipulation, falsification, or destruction of "books and records" to conceal or facilitate bribery constitutes an offence under the CFPOA (section 4).

3.4.4 In terms of jurisdiction and territoriality under Article 4 and 42 of the UNCAC, the CFPOA exercises jurisdiction over the offences that are committed in whole or in part on the territory of Canada. In addition, CFPOA also covers the conduct of Canadian companies and individuals based on their nationality, regardless of where the alleged bribery took place. Prior to an amendment in 2013, the CFPOA required the existence of "a real and substantial link" between the offence and Canada in order to exercise jurisdiction beyond its territory.

However, this requirement has now been removed. Sub-section 7(4) of the Criminal Code also extends jurisdiction to acts and omissions by public service employees under the Public Service Employment Act even though such acts and omissions may have been committed outside Canada. This is done only in the instance where the conduct in question is an offence in the place where it is committed and is also an indictable offence in Canada (principle of dual criminality).

In terms of exceptions, prior to its amendment in 2013, the CFPOA provided for the defence of facilitation payments where payments made to expedite or secure the performance by a foreign public official or an official of a public international organisation of any act of a routine nature that forms a part of the official's duties or functions were exempt from penalisation. With the amendments to 2013, this requirement has now been repealed.



Prevention of Bribery of Foreign Public Officials and Officials of Public International Organisations - A Study and Proposed Amendments Back




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