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Canada Bans Facilitation Payments Under Foreign Anti-Corruption Law

By Peter MacKay & Christopher Burkett on November 1, 2017
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Canada has formally repealed its exception for “facilitation payments” under its foreign anti-corruption legislation (the Corruption of Foreign Public Officials Act).

Canada’s anti-bribery law prohibits anyone from giving or offering a loan, reward, advantage or benefit of any kind — directly or through intermediaries — to a foreign public official as consideration for an act or omission by the latter to obtain or retain a business advantage.

Facilitation payments, regularly made to help speed up the performance by a foreign public official of any act of a routine nature that is part of that person’s duties or functions, are now unlawful. Such payments include paying a foreign official to expedite permits, licences or other official documents or the processing of visas.

These types of payments may now lead to criminal prosecution in Canada. This amendment aligns Canada with other jurisdictions, including the UK, in criminalizing such payments, and goes further than the US FCPA (which retains an exception for facilitation payments).

Foreign bribery under Canadian law has broad jurisdictional reach and is punishable by up to 14 years in jail for individuals and unlimited fines for business. Importantly, convicted corporations may be barred from doing business with government for up to 10 years under Canada’s Integrity Regime and equivalent debarment policies in other jurisdictions.

The elimination of lawful facilitation payments is a reminder to Canadian multinational corporations that adopting effective anti-bribery compliance, due diligence, and monitoring programs is crucial to inoculating business from the severe risks of an anti-corruption violation.

Photo of Peter MacKay Peter MacKay

Peter MacKay PC, QC (Privy Council and Queen’s Counsel) is a Partner in the Canadian Litigation and Government Enforcement Group.  He is a former Crown prosecutor, and he served as Canada’s most recent Federal Minister of Justice (Attorney General). Mr. MacKay’s practice focuses…

Peter MacKay PC, QC (Privy Council and Queen’s Counsel) is a Partner in the Canadian Litigation and Government Enforcement Group.  He is a former Crown prosecutor, and he served as Canada’s most recent Federal Minister of Justice (Attorney General). Mr. MacKay’s practice focuses on government enforcement proceedings and compliance matters, and he provides strategic advice to Canadian companies doing business globally and international companies doing business in Canada. Prior to joining the Firm, Peter MacKay served in the Parliament of Canada for many years and in a ministerial post in the Canadian government for nine years since the Conservative Party formed a government in 2006.  Most recently, he served as Canada’s Attorney General and Minister of Justice, a position to which he was appointed in 2013. Prior to this post, Mr. MacKay served as the Minister of National Defence for six years and held joint cabinet positions as Minister of Foreign Affairs and Minister for the Atlantic Canada Opportunities Agency for 18 months.

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Photo of Christopher Burkett Christopher Burkett

If you have any questions or comments about this blog post, please contact John Pirie at john.pirie@bakermckenzie.com.

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  • Posted in:
    Criminal
  • Blog:
    Canadian Fraud Law
  • Organization:
    Baker McKenzie
  • Article: View Original Source

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