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Specific offences and restrictions
What are the key corruption and bribery offences in your jurisdiction?
Key Canadian anti-corruption offences include the following:
- Corruption of Foreign Public Officials Act (federal):
- Section 3(1) – Bribing a foreign public official;
- Section 4(1) – Accounting (books and records offence);
- Criminal Code (federal):
- Section 119 – Bribery of judicial officers;
- Section 120 – Bribery of officers;
- Section 121 – Frauds on the government;
- Section 122 – Breach of trust by a public officer;
- Section 123 – Municipal corruption;
- Section 124 – Selling or purchasing public office;
- Section 125 – Influencing or negotiating appointments or dealing in offices;
- Section 380 – Fraud; and
- Section 426 – Secret commissions.
Are specific restrictions in place regarding the provision of hospitality (eg, gifts, travel expenses, meals and entertainment)? If so, what are the details?
Gifts, travel expenses, meals and entertainment may constitute an award, advantage or benefit in contravention of the anti-corruption provisions of either the Corruption of Foreign Public Officials Act or the Criminal Code. Unlike certain other jurisdictions, there is no government-issued guidance available for acceptable gifts and hospitality under Canadian law. While the amount of a gift or payment is often taken into account when determining whether it was given for the purpose of a bribe, there is no de minimis threshold for the amount of a bribe under the legislation.
Section 3(3) of the Corruption of Foreign Public Officials Act provides an exemption from the bribery offence where the loan, reward, advantage or benefit:
- is permitted or required under the laws of the foreign state or public international organisation for which the foreign public official performs duties or functions; or
- was made to pay the reasonable expenses incurred in good faith by or on behalf of the foreign public official which are directly related to the promotion, demonstration or explanation of the person’s products or services, or the execution or performance of a contract between the person and the foreign state for which the official performs duties or functions.
Courts have not yet ruled on the specific circumstances in which these exemptions apply.
The Criminal Code does not contain any such exceptions and courts have found that an advantage or benefit under the code may include gifts. While courts have suggested that the size of the gift is a crucial indicator of whether it should be perceived as an advantage or benefit, and that a trivial gift would likely not constitute a benefit for the purposes of the code, there is little guidance on the threshold at which a gift would constitute a bribe. Federal, provincial and municipal codes of conduct may provide some guidance as to what is generally acceptable. For example, the Canadian government’s Policy on Conflict of Interest and Post-employment requires that gifts be “infrequent and of minimal value, within the normal standards of courtesy or protocol, arise out of activities or events related to the official duties of the public servant concerned” and not “compromise or appear to compromise the integrity of the public servant concerned or of his or her organization”. However, such policies are binding on government officials and employees rather than the giver of any gift or hospitality, and thus do not fully clarify the threshold at which such benefits may be considered a bribe.
What are the rules relating to facilitation payments?
Before October 31 2017 the Corruption of Foreign Public Officials Act excluded facilitation payments – payments made to expedite or secure the performance by a foreign public official of any act of a routine nature that is part of the official’s duties or functions, and which therefore does not require discretion – from the act’s bribery offence. As of October 31 2017, facilitation payments are no longer excluded and are thus not permitted under Canadian law.
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