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Whistleblowing and self-reporting
Are whistleblowers protected in your jurisdiction?
Whistleblowers who report anti-bribery violations are protected in Canada. Section 425(1) of the Criminal Code prohibits employers from retaliating or threatening to take action against employees who provide information on employer wrongdoing that constitutes a criminal offence or other unlawful acts to law enforcement authorities.
Is it common for leniency to be shown to organisations that self-report and/or cooperate with authorities? If so, what process must be followed?
Leaving aside disclosure considerations under securities law, there is no general duty in Canada to report a crime. Accordingly, there is no obligation under the Corruption of Foreign Public Officials Act or Criminal Code to self-disclose a potential offence to the Royal Canadian Mounted Police (RCMP) or prosecutor’s office.
Companies should keep in mind the following self-disclosure considerations:
For bribery charges, there is no option for civil resolution and no alternative non-criminal resolution options, such as deferred prosecution agreements or non-prosecution agreements. The resolution options available in Canada are:
- convincing the authorities not to proceed with criminal charges;
- pleading guilty to a criminal offence; or
- fighting the matter at trial.
The Canadian authorities are more likely to bring a case that is handed to them, whereas the risk of an independent enforcement proceeding is lower. However, in Canada there is no limitation period for Corruption of Foreign Public Officials Act and criminal offences, so the risk of prosecution can never fully be abated.
If there was a conviction or guilty plea, there would usually be meaningful credit for self-reporting. However, the precise credit amount would be at the judge’s discretion, as there are no fixed guidelines for self-reporting credit in Canada.
The Canadian and US authorities are in close contact. For companies with operations in the United States, any decision to contact the authorities should include near simultaneous contact with both US and Canadian authorities.
In terms of process, for matters involving foreign bribery under the Corruption of Foreign Public Officials Act, self-disclosure would take place through the RCMP or a prosecutor at the public prosecutions service of Canada. For domestic corruption, self-disclosure would take place though the local or provincial police or the RCMP and the crown attorney’s office. Legal counsel should be consulted before self-disclosure of a potential criminal offence.
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