Investigations & Compliance

Canada has formally repealed its exception for “facilitation payments” under its foreign anti-corruption legislation (the Corruption of Foreign Public Officials Act).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.
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The Supreme Court of Canada released its anticipated decision in Guindon v. Canada on July 31, 2015, which held that administrative monetary penalties (“AMPs”) in the Income Tax Act  are not offences that trigger constitutional protections such as the right to be presumed innocent. You can read more about the case in this alert for Global Compliance News.
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On July 3rd, 2015, the Canadian government announced a new Integrity Framework (the “Integrity Regime”), which applies to all federal procurement and real property transactions, and debars suppliers who have been convicted of “integrity offences” from contracting with the federal government for a set period of time ranging from 5-10 years.

The previous regime, first introduced in 2012 by Public Works and Government Services Canada (“PWGSC”) was then revised in March of 2014. At the time, the updated Integrity Regime was seen by many as inflexible and unduly harsh. In particular, a number of respected commercial and legal organizations criticized the Integrity Regime for providing for an automatic 10-year ban on government contracting for suppliers who were found guilty (or discharged) in relation to offences included on an enumerated list from a diverse set of laws, including the Financial Administration Act, the Criminal Code, the Competition Act, and the Corruption of Foreign Public Officials Act, among others[1].
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Nazir Karigar, a former agent of an Ottawa high-tech company  was sentenced on May 23, 2014 to a penitentiary term of three years for conspiring to bribe several Indian government officials in the first Corruption of Foreign Public Officials Act (the “CFPOA” or the “Act”) case to go to trial. The conspiracy to bribe had as its purpose the winning of a tender for a multi-million dollar contract to sell facial recognition software to Air India, a state enterprise. Facial recognition software may play an important role in preventing the boarding of planes by unauthorized persons.
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As of February 24, 2014, prosecutors in the United Kingdom will have a new tool in their arsenal to combat corporate criminal wrongdoing. After a lengthy consultation process, and with the benefit of observing a longstanding U.S. practice, the British Parliament amended its Crime and Courts Act to allow for Deferred Prosecution Agreements (“DPAs”). Canadian lawmakers should carefully review this new legislation, as well as the U.S. DPA program, as either system would be a step in the right direction for Canada.  

To date, federal officials in Canada have not shown an interest in introducing a DPA system for use by Canadian prosecutors tasked with combatting commercial crime. A DPA system, however, has many advantages for both the regulator and the regulated that Canada should consider. For the regulator, it provides the benefit of internal investigations that are funded by industry and disclosed voluntarily, which saves massive government resources. For the regulated, they avoid a conviction and admission of liability, which minimizes legal and reputational damage. The newly adopted U.K. regime provides a new model for Canada to consider alongside the American regime.
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SA Capital Growth Corp. v. Mander Estate dealt with the thorny issue of whether a court-appointed officer, in this case a Receiver appointed to sell the assets of an insolvent entity, had a legal obligation to disclose information that it had obtained to an individual who was facing serious allegations under Ontario’s Securities Act. Justice Pattillo of the Ontario Superior Court decided that a receiver is generally not required to produce the details of its investigations or the documents in its possession to parties that are inside or outside of the receivership. However, since the accused has the right under s. 7 of the Charter of Rights and Freedoms, to make full answer and defence to a criminal allegation, this right entitled him solely to information that is “likely relevant” to the criminal charges against him.

The Ontario Court of Appeal found that it was inappropriate for the Superior Court to make what amounted to an interim procedural order in relation to a proceeding pending before the Ontario Securities Commission (OSC). As a result, it was left for the OSC to decide whether third party production was appropriate.
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