Let's talk about recent updates to Canada's Corruption of Foreign Public
Officials Act and what this can mean for your organization. Recently the Canadian
government revoked its exception for facilitation payments under the
Corruption of Foreign Public Officials Act or CFPOA.
This amendment demonstrates the government's continued efforts to ensure
that Canadian businesses, and organizations operating outside the
country, conduct themselves responsibly and with integrity in the global
marketplace. Canada's anti-bribery law prohibits
anyone from giving or offering a loan or reward an advantage or benefit of any
kind either directly or through intermediaries to a foreign public
official in order to obtain or retain a business advantage. Facilitation payments
sometimes referred to as "grease payments" are typically made to help expedite
government to services of our routine nature that's part of a foreign public
officials normal duties or their functions these payments are now illegal
and are no longer considered as a possible defense for bribery. The CFPOA
sets out a list of examples of facilitation payments that are no longer
excluded from the bribery offense. These include the following examples any
payments for the issuance of permits licenses or other documents in order to
qualify a person to do business. The processing of official documents such as
visas and/or work permits the provision of services such as telecommunication
services or power and water supply, and payments for normal government services
such as police protection or customs inspection related to the transportation
of goods. These types of payments may now lead to criminal prosecution in Canada
this amendment now brings Canadian legislation into alignment with
legislation of other countries including the UK's Bribery Act. It also adopts
recommendations from the OECD and other organizations like
Transparency International for countries to take steps to discourage businesses
from making any facilitation payments at all. While a facilitation payments
exclusion is still found in the US. Foreign Corrupt Practices Act, in
practice, it has at a very narrow interpretation accorded to it by the US
enforcement agencies - and for this reason most companies in the US do not
provide for this exclusion in their anti-bribery compliance programs or
their policies. Foreign bribery under Canadian law has broad jurisdictional
reach and is punishable by up to 14 years in jail for individuals and has
unlimited fines for businesses. It's also worthwhile to note that bribery and
facilitation payments are not permitted regardless of whether the payment
occurred in Canada or abroad. Accordingly Canadian businesses operating in Canada
and internationally would be wise to ensure that their current business
practices and compliance programs reflect this latest development in
anti-corruption enforcement in Canada. In addition to possible imprisonment and
fines convicted corporations could face being barred from doing business with
the government for up to 10 years under Canada's integrity regime as well as
facing sanctions under equivalent Department policies in other
jurisdictions the elimination of facilitation payments from the
anti-corruption act is an important reminder to Canadian corporations who
operate internationally that adopting effective anti bribery compliance, due
diligence, and monitoring programs is critical to safeguarding their
businesses from the severe risks of an anti-corruption violation. If nothing
else these recent changes present a good opportunity to check if your
organization is taking the appropriate steps to manage its ongoing bribery
risks.
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