In recent years, Canada has been steadily increasing its efforts at combatting corruption of public officials and improving transparency of payments involving governments and government-owned entities at home and abroad. 2017 was no exception to this trend, as Canada took several steps forward in combatting corruption. However, 2017 also witnessed important setbacks in those efforts and exposed certain enforcement pitfalls which speak to the limits of Canada’s foreign corruption regime.
Here are some of the 2017 highlights of Canada’s fight against foreign corruption to be aware of when addressing anti-corruption compliance, investigations and enforcement issues in 2018: (1) new developments in the enforcement of the Corruption of Foreign Public Officials Act; (2) repeal of the facilitation payment exemption under the CFPOA; (3) public consultations on Deferred Prosecution Agreements (“DPAs”); and (4) full implementation of the Extractive Sector Transparency Measures Act.
1. CFPOA Enforcement
Since the adoption of the CFPOA in 1998, there have been three foreign bribery convictions on guilty pleas – Hydro-Kleen Group (2005 - $25,000 fine), Niko Resources (2011 - $9.499 million fine plus a three-year monitoring order), and Griffiths Energy International Inc. (2013 - $10.35 million fine) – and one trial conviction of an individual, Nazir Karigar. A 2016 Parliament report has noted that there are 10 ongoing investigations in which charges have not yet been brought.
2017 continued to see a trend towards increased scope and enforcement of the CFPOA, Canada’s primary foreign corruption law. This trend picks up on the June 2013 amendments to the CFPOA which bolstered the CFPOA with the introduction of a nationality-based jurisdiction and a books and records offence – powerful enforcement tools which have yet to be used in prosecution.
The following summarizes the ups and downs of foreign corruption enforcement that made the news last year.
a. Acquittals in R v Wallace
2017 began with the momentous dismissal, in R v Wallace, of foreign corruption charges brought against three former SNC-Lavalin executives who were accused of bribing Bangladeshi officials in connection with the Padma Bridge project.
The Canada’s Royal Canadian Mounted Police (“RCMP”) had initially charged five individuals in connection with this matter. Charges against a foreign SNC-Lavalin agent were dismissed for want of jurisdiction and charges against another individual were dropped in exchange for his cooperation. The three remaining accused moved to exclude the prosecution’s wiretap evidence. They argued most notably that the wiretaps were illegal, because they had been issued on the basis of non-credible and uncorroborated information obtained from anonymous tipsters by the primary lender for the Padma Bridge project, the World Bank.
The Vice Presidency of Integrity (“INT”) of the World Bank had initially approached the RCMP with information related to bribery allegations from four “tipsters”, all but one of which remained anonymous. Based on these allegations, and without corroboration of their identity or information, the RCMP obtained a warrant to intercept communications of the SNC-Lavalin individuals.
The former executives brought an application to have the wiretaps excluded. To support their application, the accused brought a motion seeking the production of the World Bank’s investigative materials, including communications with the tipsters and source documents. As, under Canadian law, World Bank employees are granted immunity from court orders, the former executives further argued that whatever immunity the World Bank had under Canadian law against local proceedings had been waived by participating in the RCMP investigation.
The disclosure application was fought all the way up to the Supreme Court of Canada where it was defeated. In upholding the World Bank’s immunity over its investigation, the Court stressed the importance of worldwide cooperation among law enforcement authorities and international financial organizations such as the World Bank in the fight against the global problem of corruption. This ruling provides significant protection to the World Bank INT, and also improves the likelihood of cooperation between the World Bank and Canadian authorities in the future. An adverse finding could have resulted in a chilling effect on cooperation between these authorities. Given the expertise and information that is available to the World Bank, allowing this type of involvement can be crucial to prosecutions.
Despite this setback, the accused nonetheless successfully persisted in their efforts before the Ontario Superior Court of Justice to exclude the wiretaps from the evidence. In January 2017,the Court found that the tipsters’ information left an insufficient basis for authorizing the wiretaps. In the Courts’ opinion, the information “was nothing more than speculation, gossip, and rumour” and “was based on four unproven tipsters, two of whose identities were unknown, and for which there was no direct corroboration in any material sense”. The Court found that the RCMP had misled the judge who issued the warrant by using language designed to lead him to make an improper inference and implying circumstances which the RCMP knew were either untrue or completely unsupported by the evidence. Accordingly, the Court ruled that the wiretap evidence was not admissible. As a result, the prosecution elected to call no evidence and the remaining three accused were acquitted in February.
The decision in R. v. Wallace started the year on a low point for corruption efforts. It appeared to undermine the practice of relying on anonymous “tips” and whistleblowers and provide ammunition to accused companies and individuals to argue that wiretaps obtained on this basis should be excluded. However, this overstates what the court held – the court did not hold that anonymous whistleblowers were always unreliable, but rather underlined that there should be intermediary steps between receiving such reports and obtaining a warrant so as to bolster the reliability and authenticity of such reports.
Leading into 2018, it remains to be seen how the failure to secure any conviction in the Padma Bridge project and to rely on whistleblower information in furtherance of prosecution will play out for CFPOA enforcement. It is expected that the authorities will be more cautious in handling and corroborating whistleblower information so as to bolster its reliability and authenticity in future investigations.
b. Pending Charges against SNC-Lavalin
SNC-Lavalin continues to face CFPOA and other criminal charges in connection with past activities in Libya. These charges are scheduled for a 50-day trial starting in September 2018 in which two matters will be combined into a single hearing: the first against SNC Lavalin Group Inc. and two of its subsidiaries, and the second against two former SNC-Lavalin executives. This case is set to become a potential turning point in the history of Canadian criminal law either as:
- the first contested trial on corporate charges of foreign corruption; or
- the first settlement of corporate charges through the highly anticipated deferred prosecution mechanism on which Canada sought consultations in 2017 (see point 3 below).
c. Conviction Upheld in R v Karigar
In one of the most noteworthy development in CFPOA enforcement in 2017, on July 6, the Ontario Court of Appeal released its decision in R v Karigar, the first Canadian appellate level decision to address the scope of the CFPOA. The Ontario Court of Appeal upheld the conviction of Nazir Karigar, an Ottawa-based businessman who was sentenced to three years in prison for his role in a scheme to offer bribes to Indian officials on behalf of a Canadian technology company, CryptoMetrics. The decision confirmed that the foreign corruption offence casts a wide net, prohibiting not only giving or offering of bribes to foreign officials, but also “agreeing” to give or offer bribes, regardless of whether the targeted official partakes in an agreement or if a bribe was actually offered or paid to the official.
At trial it was established that Karigar, along with his associates and certain executives of CryptoMetrics:
- openly discussed the payment of bribes to Indian officials in order to secure the contract;
- prepared a spreadsheet budgeting intended bribes, in cash and in shares, to identified Indian officials;
- designed a sham proposal, through a related entity, in order to create the appearance that the bidding process was competitive;
- transferred monies to Karigar, upon the latter’s request, with the understanding that they would be remitted to officials listed in the spreadsheet; and
- discussed how to amortize the bribes in order to maintain the profitability of the project.
However, the bribe (US$450,000) could not be traced beyond its transfer by Karigar to an agent in India who was to give the funds to the foreign official. There was ultimately no proof of any actual payment made to a foreign official. Nonetheless, the trial judge convicted Karigar and sentenced him to three years.
Karigar argued on appeal that the foreign corruption offence required proof of an actual agreement between the accused and the foreign public official. Because the evidence only revealed an agreement between him and his partners, and not with any of the Indian officials, Karigar argued that the conviction could not stand.
The Ontario Court of Appeal dismissed the argument. It noted that the offence is committed when a person “directly or indirectly gives, offers or agrees to give or offer [our emphasis]” a bribe to a foreign public official. The CFPOA places no restriction on who must “agree” and it does not require that one of the parties to the agreement must be a foreign official. The CFPOA only requires that there be an agreement between two or more people, and that the subject matter of that agreement be a loan, reward, advantage or benefit to (or for the benefit of) a public official.
Karigar is also notable for rejecting an attempt to narrow the “real and substantial” connections necessary to establish Canada’s territorial jurisdiction over foreign corruption offences. According to the Court of Appeal, the fact that the essential elements of the offence in this case, such as the decision to bribe foreign officials and the dealings in India, may have taken place outside of Canada, did not change the finding that other aspects of the transaction – including legitimate aspects – were sufficiently linked to Canada.
The offence in this case was committed prior to the June 19, 2013 amendments to the CFPOA which extended the foreign corruption offence’s extraterritorial reach to acts committed abroad by Canadian citizens, residents and corporations. The decision remains nonetheless relevant for establishing jurisdiction over CFPOA violations that fall beyond the scope of the nationality-based jurisdiction, such as cases involving foreign individuals and entities.
Karigar is the first and, so far, the only individual to have been convicted under the CFPOA. Others involved in the conspiracy – CryptoMetric’s former CEO and COO (both US nationals) and a UK agent – have been charged with agreeing to pay bribes to Indian officials in violation of the CFPOA. The agent is also charged with theft under section 334 of the Criminal Code. Their cases are currently pending before the Ontario Superior Court, which dismissed, in October, an application to stay the charges for undue delay in completing the trial. Justice Labrosse rejected the application, noting that the total net delay in proceedings (when factoring in delay caused by the defence and factors outside the Crown’s control) was below the 30-month presumptive ceiling set out by the Supreme Court in R. v. Jordan.
d. Charges Dropped against Larry Kushniruk
On November 24, 2016, the RCMP charged Larry Kushniruk – the President of Canadian General Aircraft – with a violation of the CFPOA for conspiracy to bribe Thai officials. As with the case in Karigar, the RCMP did not allege that Mr. Kushniruk had actually bribed any Thai officials, simply that he was involved in a conspiracy to bribe those officials. On December 6, 2017, those charges were dropped and the case against Mr. Kushniruk was dismissed. There was no explanation provided at the time by the RCMP or by the Crown.
2. Canada Repeal of the Facilitation Payments Exemption
On October 31, 2017, the federal government brought into force a pending amendment to the CFPOA that eliminated the exemption of facilitation payments – payments to low-level government officials to expedite or secure the performance of an act of a routine nature – from the purview of the foreign bribery offence.
The change flows from amendments made to the CFPOA back on June 19, 2013. Unlike the other amendments that were put in place immediately, the repeal of the facilitation payment exemption was held in abeyance. At the time, the Canadian government made clear that this was being postponed so that companies would have an adjustment window to change practices and policies in order to eliminate these payments, although no time frame was given as to when the actual termination of the exemption would take effect.
This move is somewhat divisive as not all OECD jurisdictions have fully implemented bans on the payment of facilitation payments. Proponents of allowing facilitation payments note that unlike bribes these payments are simply made to expedite decisions and rights that the payor already has. Payments made to alter or avoid a determination by an official would likely fall out of the scope of a permissible facilitation payment. Notably, the United States has not banned facilitation payments. This potentially puts Canadian companies at a competitive disadvantage to those based in the United States when it comes to ensuring smooth and procedurally efficient commerce within certain jurisdictions.
Opponents of facilitation payments note that corruption is a qualitative matter, not a quantitative one. Even small corrupt payments for comparatively minor benefits are still providing the payors with an advantage over others from the enrichment of an official rather than the government and people whom the official represents. In addition, allowing a facilitation payment exemption provides potential safe harbour and defences to illicit payments being passed off or otherwise portrayed as simple facilitation payments.
While Canada has chosen to ban facilitation payments, the CFPOA continues to exempt payments that are permitted under a foreign official’s domestic law. For example, if a country’s law allows a corporation to pay local officials a per diem for certain services, then the payment of that per diem is not a CFPOA violation. This exemption, which has always applied to larger payments that would otherwise be barred by the CFPOA, remains applicable to payments that formerly fell under the facilitation payment exemption. It will also be important, moving forward through 2018 and beyond, for companies to ensure that they consider the domestic legality of all payments they makes to foreign officials.
3. Canada Consultations on Deferred Prosecution Agreements (“DPAs”) and Integrity Regimes
One feature of Canada’s criminal law that sets it apart from that of the United States and the United Kingdom has been the lack of a deferred prosecution mechanism. DPAs allow companies to settle criminal charges by agreeing to pay a fine, adopt remedial measures and possibly be subject to ongoing monitoring by an independent third party. The unavailability of DPAs in Canada has led to situations where companies that may have been willing to self-disclose wrongdoings in exchange for certain guarantees and more lenient enforcement were instead faced with a choice to either plead guilty or vigorously defend the charges, regardless of potential defence costs.
Following the example of the United Kingdom, Canada is now considering adopting a DPA regime. On September 25, 2017, Canada began consultations with public stakeholders regarding whether Canada should adopt such a regime, how it should be constructed, and, importantly, how DPAs would interact with the federal Integrity Regime, that is the federal rules of debarment from public procurement.
Canada also began consultations on the Integrity Regime adopted by Public Services and Procurement Canada. The Integrity Regime, which was implemented in 2015, protects the integrity of the procurement by the government by debarring bidders that have been charged or convicted of CFPOA offences or certain other crimes (such as defrauding the government) either in Canada or abroad, had affiliates charged or convicted of those offences (where there was a determination that the bidder had some form of connection to the offence), or first tier subcontractors that have been charged or convicted of such an offence.
Consultations closed on December 8, 2017. Canada sought comment from the legal professional associations, civil society groups, and non-governmental organizations. Canada expects to release a report on its public consultations in early 2018, and is likely to follow the report with the implementation of a deferred prosecution mechanism and the reform of the federal Integrity Regime shortly thereafter. However, this process may be derailed for the Federal Budget in Q1, 2018. As such, we would not expect significant movement on establishing a DPA regime until Q2, 2018 or later.
4. Developments Under ESTMA – Aboriginal Payments Now Reportable
In 2015 Canada adopted ESTMA, a federal anti-corruption regime that requires extractive sector companies operating in Canada to report on payments made to foreign and domestic government entities. Beginning on June 1, 2017, this obligation extended to the reporting of payments made by extractor sector companies to Canadian indigenous government entities, an obligation which had been deferred for two years.
It is important to note that this reporting obligation is broad, and applies to a wide range of public and private companies that own or control, directly or indirectly, companies engaged in the commercial development of oil, gas or minerals in Canada or elsewhere. For example, this includes companies that are cross-listed on the TSX or TSXV. Interestingly, it also likely includes companies that are not “traditional” extractive sector companies – for example, investment funds that hold controlling share positions in extractive companies.
5. Conclusion – Big Steps in 2017, Progress to be Made in 2018
2017 marked a series of critical events in the Canadian fight against corruption while also protecting the due process rights of the accused. The cases in Karigar and Wallace struck a fine balance between enforcing the spirit and letter of the CFPOA while also maintaining the integrity of investigative techniques, specifically with respect to the admissibility of whistleblower information into evidence. As for the repeal of the facilitation payment exemption, it eliminates an important rampart against prosecution and marks a shift toward a rigid crackdown against foreign corruption.
Moving into 2018, many companies will see potentially major governance changes. Companies will likely have to closely examine their payment structures for any payments or other benefits provided to government officials to ensure that they have a legal basis or defence in the post-facilitation-payment-exemption era. This is especially important with regard to payments that were formerly classified internally as facilitation payments. Companies will also want to remain actively seized of new developments regarding the establishment of a deferred prosecution mechanism and any changes to the federal Integrity Regime.