As part of Canada’s 2013 significant overhaul to its foreign corrupt practices regime, the Corruption of Foreign Public Officials Act (CFPOA), Canada indicated an intention to repeal the exception for facilitation payments. The repeal of facilitation payments was, however, held in abeyance for several years. Today, the Government of Canada announced that the facilitation payment exception will be repealed, effective tomorrow (October 31, 2017). Accordingly, starting tomorrow, facilitation payments will no longer be permitted under the CFPOA.
WHAT IS A FACILITATION PAYMENT?
Facilitation payments, also known as “grease” payments, are small payments to government officials to secure or expedite performance of “acts of a routine nature.” These types of payments are generally demanded by lower-level government officials in exchange for the provision of services that an individual would otherwise be entitled.
The removal of the facilitation payments exception brings the Canadian anti-corruption regime in line with the UK Anti-Bribery Act and calls from the Organization for Economic Co-operation and Development to prohibit facilitation payments. However, it differentiates the Canadian regime from the U.S. Foreign Corrupt Practices Act (FCPA), which continues to allow facilitation payments. The implications for Canadian companies or companies that do business in Canada are that:
- Companies need to re-evaluate their compliance programs. While many companies’ compliance programs already prohibit facilitation payments, those prohibitions may not be express. Accordingly, to the extent current anti-corruption compliance systems permit or are silent respecting facilitation payments, any exceptions or ambiguity should be addressed.
- Companies should also revisit their training and compliance messaging to ensure that this legislative change is adequately disseminated within the company. Specific updates or training should be provided to frontline personnel responsible for interacting with government officials and accounting personnel/financial gatekeepers responsible for detecting improper payments.
- Dual-listed companies, or companies that conduct business in both Canada and the United States, should comply with the more stringent standard imposed under Canadian law. The ongoing allowance of facilitation payments under the FCPA will not preclude enforcement action under the CFPOA.
- Finally, as under the CFPOA, companies can, in certain circumstances, be liable for the conduct of agents and other intermediaries acting on their behalf. Therefore, companies should revisit their third-party controls, including (1) disseminating messaging on this legislative change to third parties that interact with government officials on the company’s behalf, and (2) revisiting contractual representations and warranties to ensure compliance with current Canadian legal standards.
This decision is reflective of the ongoing evolution of the Canadian anti-corruption system. Canada’s commitment to combat bribery and corruption by Canadian citizens and companies is demonstrated by amendments to the Integrity Regime (for further information, please see our previous Blakes Bulletin: Amendments to the Integrity Regime – A Step in the Right Direction), the recent request for consultation respecting the potential use of deferred prosecution agreements or “DPAs,” and the implementation of the Extractive Sector Transparency Measures Act (for further information, please see our previous Blakes publication, Complying with the Extractive Sector Transparency Measures Act).