Bill S-14 (Historical)

Fighting Foreign Corruption Act

An Act to amend the Corruption of Foreign Public Officials Act

This enactment amends the Corruption of Foreign Public Officials Act to
(a) increase the maximum sentence of imprisonment applicable to the offence of bribing a foreign public official;
(b) eliminate the facilitation payments exception to that offence;
(c) create a new offence relating to books and records and the bribing of a foreign public official or the hiding of that bribery; and
(d) establish nationality jurisdiction that would apply to all of the offences under the Act.

Fighting Foreign Corruption Act

[Alex Atamanenko, NDP, British Columbia Southern Interior, BC]

Mr. Speaker, I greatly appreciated my colleague's question, and I very much enjoyed working with him on the Standing Committee on Agriculture and Agri-Food in the good old days.

I think the member should put the question to the other side of the House. I do not understand the reason for this delayed response. In my opinion, this is not a proactive government. It takes action in response to scandals and pressures instead of taking an appropriate and fair moral stance to try to prevent the problems that arise in the world.

That is what a social democratic government would do.

[Ève Péclet, NDP, La Pointe-de-l'Île, QC]

Mr. Speaker, once again, I feel a bit sick as I rise in the House to debate a bill that has come from the Senate.

I will echo my colleague’s remarks by saying that the government has no reason to be proud of itself right now. It did not even act; it was the Senate that did so. If the Senate had not decided to introduce this bill, would the government have adopted measures such as these? I very much doubt it.

The bill comes from an unelected and undemocratic chamber, and, as we know, that chamber has been in the headlines in recent weeks as a result of corruption-related scandals. In my view, it is ironic to talk about corruption when the bill comes from the Senate. Some senators are currently under investigation by the RCMP, but that is another matter.

The bill stems from the report published by Transparency International, which ranked the Canadian mining and oil and gas industries second and third among sectors in which acts of corruption are most likely to be committed. This is rather important for a country such as Canada, which has between 75% and 80% of all global mining exploration and extraction companies. If that industry ranks second or third for acts of corruption, and Canada has approximately 80% of all those companies, that means the bill is crucial for Canada.

Canada has more extraction companies than any other country in the world. It often makes the headlines as a result of acts of corruption, human rights violations and breaches of environmental standards. Consequently, I think it is essential for us to take action. I am pleased to rise in the House to say that the NDP will support the bill so that it is referred to committee.

It is important to note that, in its report, Transparency International ranked Canada last among the G7 countries in combating corruption. It is important to say that. The government needs to realize that it is time to take action. Since 1999, there have been only three convictions under acts passed to combat corruption. It is true that the legislation was in force, but it was barely complied with and barely enforced. This bill is therefore extremely important. It is time for the government to open its eyes and do something to combat corruption.

The Conservatives themselves have fallen victim to scandals, and it is time to act. If they want to show their good faith, let them act today.

The NDP has always supported corporate social responsibility. For example, my colleague from Burnaby—New Westminster introduced Bill C-323, which would permit persons who are not Canadian citizens to initiate tort claims based on violations of Canada's international obligations. My colleague from Ottawa Centre also introduced Bill C-486, which requires companies using minerals originating in the Great Lakes Region of Africa, a highly unstable region that has suffered many conflicts, to exercise due diligence and comply with OECD standards respecting conflict minerals.

The bill will support all the New Democratic Party's initiatives to ensure that Canada's private and public sector representatives comply with Canadian legislation. The criteria that Canada is required to meet must also be met by Canada's international representatives.

Consider, for example, the recent events in Bangladesh, where the death toll is unfortunately rising every day and now stands at more than 1,000. That event has shed light on the problems of businesses operating internationally, whether they come from Canada or any other country. Deficiencies in the enforcement of anti-corruption legislation in Canada are extremely numerous. Non-governmental organizations single us out in reports and criticize our international activities, and I hope that all members of Parliament are as embarrassed about that as I am.

As I know from speaking to many of them, Canadians want our businesses to represent Canada in a respectable, transparent and responsible manner and to have clear, coherent international business standards. It is important for Parliament to let those companies do business but also to provide them with a clear, coherent framework so they know what to expect when they do business internationally.

Enforcing loophole-free regulations will therefore level the playing field for all companies, while protecting the environment, employment and human rights, something that we can be proud of. For example, the bill will bring Canada's rules and criteria in line with those of 36 of the 39 OECD member countries. It was time that happened. Our standards and practices had not been consistent with those of the majority of OECD member countries since 1999. This bill will help harmonize regulations.

However, the payment rules will come into force only when cabinet wishes. This part of the bill should come in for particular scrutiny when examined in committee. Cabinet should not be responsible for deciding when an act comes into force. If this bill is passed by Parliament, it should come into force immediately.

Environmental and labour standards, for example, are not always effective in developing countries. They often vary with the freedom of expression and demands of the local populations. It is therefore difficult for populations to call for government accountability when revenues are low. If we as Canadians want to invest in other countries, we must set an example. Accountability is important.

Canada's international leadership is vastly undermined by all the Canadian companies involved in corruption scandals. I could name several in South America, Asia and Papua New Guinea. It is time to take action and restore Canada's international image.

The addition of a national jurisdiction based on the nationality of businesses is also very important. This standard is recognized in international law. Businesses that have their headquarters and operations in a country are considered as having the nationality of that country. This therefore obviates the need for investigators to establish connections or find evidence of the offence committed in Canada. An offence may have been committed entirely outside the country, hence the importance of creating this nationality jurisdiction, which will enable investigators to bring people who commit crimes to justice.

It is therefore very important for Canada to ensure that Canadian businesses abide by international standards and respect human rights and that they not be corrupt.

I look forward to my colleagues' questions.

[Jean Rousseau, NDP, Compton—Stanstead, QC]

Mr. Speaker, I commend my colleague, the hon. member for La Pointe-de-l'Île, on her excellent speech.

To me, one thing is missing from this bill that could become law in the future. When we talk about corruption, we are also talking about working conditions. For example, we can talk about attracting businesses here by promising the working conditions we have in Canada, by telling these people that they can do what they want, that it is no problem, that enough workers are available and they can go ahead with their plans.

The hon. member spoke very eloquently about human rights, but there is also the matter of labour rights. There is a great deal of corruption. This may need to be defined. Nonetheless, this corruption might exist when we are attracting businesses. Canadian businesses that represent Canada abroad accept working conditions that would never be tolerated in Canada.

I think that allowing businesses to exploit a situation outside the country under the Canadian banner and under lesser working conditions constitutes corruption, and it would be unacceptable here.

[Ève Péclet, NDP, La Pointe-de-l'Île, QC]

Mr. Speaker, I will try to answer my colleague's question.

I would say that it is important to distinguish between the violation of international standards and corruption, which is also a violation of international standards. No country will say that corruption is legal.

However, it is important to know that Canadian companies try to have clear and coherent standards. The government is wrong when it claims that these companies are more likely to comply with Canadian standards because they are abroad.

On the contrary, creating nationality jurisdiction is key. A Canadian company that has its assets in Canada is subject to Canadian law even if it operates in another country.

For example, I am a Canadian citizen, but that does not mean that I will no longer be subject to Canadian laws when in another country. In fact, the definition of a number of crimes has been changed in the Criminal Code in order to ensure that people who commit crimes abroad can be found guilty in Canada.

Therefore, it is very important to ensure that Canadian companies respect human rights, no matter where in the world they operate.

[Jonathan Tremblay, NDP, Montmorency—Charlevoix—Haute-Côte-Nord, QC]

Mr. Speaker, I believe that with this bill the government is trying to capitalize on events in the news without really thinking about what should be done to remedy the situation.

Remedying a situation requires human and financial resources. However, the government is making cuts in all areas that deal with corruption.

How can this government achieve excellent outcomes if it is making cuts everywhere? I am thinking of the Canada Revenue Agency, for example.

[Ève Péclet, NDP, La Pointe-de-l'Île, QC]

Mr. Speaker, we have put our finger on another problem.

As I said in my speech on witness protection, the government has passed legislation in Parliament, and that makes sense, since that is why members are elected and serve in Parliament. The Conservatives passed a bill so they could look good, which is their trademark, but this legislation has to be implemented.

I think the Conservatives may have partly forgotten the role of government. Indeed, its role is to pass bills. However, it is also to provide resources for the stakeholders on the ground and to implement these bills.

As I said, it is all well and good to pass a bill that will ensure that corruption is punished more severely, but the people on the ground still have to get the resources they need to ensure that criminals are prosecuted and convicted for their crimes.

[Dave Van Kesteren, Chatham-Kent—Essex, CPC]

Mr. Speaker, I will be sharing my time with the Minister of International Cooperation.

It is my pleasure to rise this evening to participate in the debate on the fighting foreign corruption act. In my view, Bill S-14 is signature legislation. Since its introduction on February 5, the proposed changes have given Canada good marks both from domestic stakeholders and from the OECD working group on bribery.

These positive comments from groups such as Transparency International were given with the strong caveat that proposed amendments be adopted. Canada has invested a lot of credibility in getting this bill tabled, and we are to report back to the OECD in the near future regarding its adoption.

As others have stated before me, the issue of foreign corruption is as timely as it has ever been, and our government remains committed to seeing this legislation enacted as quickly as possible. It is my hope that this commitment is shared by all opposition parties and members of the House.

The OECD has just published on its website the report that Canada submitted to the organization's working group on bribery, as well as the working group's own summary and conclusion. As part of the OECD's peer review mechanism, Canada was called upon to submit a written report detailing the progress it has made over the past two years in responding to all of the recommendations and follow-up points previously identified by the working group on bribery.

The written report details the significant progress made by Canada in terms of investigations and prosecutions of the foreign bribery offence; the awareness-raising efforts undertaken by numerous government officials, agencies and crown corporations; and the amendments to Canada's foreign bribery legislation, the corruption of foreign public officials act, or CFPOA.

The lead examiners for Canada's evaluation stated that they were extremely impressed with our results. They indicated that Canada should be very proud of what it has achieved in such a short period of time. They also signalled their strong support for Bill S-14, stating that should this bill be adopted by Parliament, Canada would be deemed to have fully implemented most of the significant recommendations made to it by the working group on bribery.

The working group on bribery also concluded that as it stands, Canada has already fully implemented nine out of the total of 18 recommendations and subrecommendations, including those that touched on resources for foreign bribery prosecutions and investigations, awareness-raising, building relationships with provincial securities commissions and due diligence in government contracting. In addition, five of the 18 recommendations were deemed to be partially implemented. Another three of the 18 recommendations were held to be not implemented, but will be fully implemented if and when Bill S-14 is adopted by Parliament.

This is positive reinforcement. Members can rest assured that it only strengthens our desire to see Bill S-14 passed as quickly as possible.

I would now like to provide a brief summary of some of the key conclusions made by the OECD's working group on bribery.

The first relates to a recommendation that Canada amend the offence of bribing a foreign public official in the CFPOA so that it is clear that it applies to bribery in the conduct of all international business, not just business for profit. The elimination of the words "for profit" from the definition of "business" is vitally important, as it would ensure that the CFPOA is not limited to bribes paid to for-profit enterprises or just in the course of business that is currently profitable. I am pleased to report that this recommendation would be considered fully implemented if Bill S-14 is passed in its current state within one year of tabling.

A second recommendation requested that Canada take appropriate measures to automatically apply, on conviction for a CFPOA violation, the removal of the capacity to contract with a government or receive any benefit under such a contract, consistent with the domestic bribery offence in the Criminal Code. This was assessed to be fully implemented as a result of the change in policy in 2012 by Public Works and Government Services Canada.

The third recommendation urged Canada to take such measures as may be necessary to prosecute its nationals for bribery of foreign public officials committed abroad. I am pleased to report that with the nationality jurisdiction clause included in Bill S-14, this would be considered fully implemented once the bill has passed in its current state and within one year of tabling.

The last recommendation I wish to mention specifically calls on Canada to find an appropriate and effective means for making companies aware of the CFPOA, including the defence for reasonable expenses incurred in good faith and the defence of facilitation payments.

It also calls on Canada to increase efforts to raise awareness of the CFPOA in industries at high risk for bribing foreign public officials and individuals and companies operating in countries where there is a high risk of bribe solicitations, as well as municipal and provincial law enforcement authorities. This was assessed to be fully implemented.

Should members choose to read the report and the OECD findings on their website, I think they would be delighted to hear some of its conclusions. Here is a sample:

Canada has continued the enforcement momentum...Canada now has two additional and major convictions against companies in the oil and gas sector under its Corruption of Foreign Publics Officials Act.

The WGB also welcomes significant steps taken by Canada to improve the CFPOA and address three main Phase 3 recommendations through Bill S-14....Bill S-14 also repeals the exception in the CFPOA for facilitation payments...Canada has therefore now fully implemented Recommendation 6.

A number of federal departments, agencies and crown corporations play key roles in Canada's two-pronged approach to foreign bribery: that of enforcement and prevention. Bill S-14 reflects what we believe is the will of Canadians and of Canadian businesses and stakeholders.

In considering the OECD's recommendations and in preparing our response to them, the government consulted widely, including a January 2012 session hosted by the Department of Foreign and International Trade. At that time, over 30 expert stakeholders from Canadian businesses, law firms, academic institutions and non-governmental organizations participated.

It provided an opportunity for full discussion on concrete steps that would be taken to improve the enforcement of the CFPOA as well as an opportunity to further encourage Canadian companies to prevent bribery before it happened and to detect it if it occurred.

We are pleased with the WGB strong positive endorsement of the significant progress made by Canada on investigations and prosecutions of the foreign bribery offence, the awareness raising efforts undertaken by numerous government departments and on the proposed amendments to CFPOA in Bill S-14.

As the Minister of Foreign Affairs stated on the day Bill S-14 was introduced:

Canada is a trading nation. Our economy and future prosperity depend upon expanding our trade ties with the world. This, we hope, is a good faith sign that Canada’s good name retains its currency.

In conclusion, failing to adopt Bill S-14 would send the wrong signal about Canada and Canadian companies. For this reason, I urge all members to support this important legislation.

[Philip Toone, NDP, Gaspésie—Îles-de-la-Madeleine, QC]

Mr. Speaker, my colleague's presentation was fairly elaborate and had a lot of interesting points.

We note that in the bill we redefine business. That is probably a good idea. It will be clear now what constitutes a business and what the bill would actually be addressing, what form of business. However, it does lead the question of, and the member had mentioned it in his presentation, facilitation payments.

How will we ensure that any non-profits especially, any Canadian company really, but especially non-profits will not have to unduly pay consequences for the fact that they had to pay facilitation payments?

[Dave Van Kesteren]

Mr. Speaker, first, we need to talk about what a facilitation payment is. I guess we would call it a “grease payment”. It is a payment made for something that should be given, regardless. In other words, if a government official is supposed to give, or provide for a mining company, a report before it can begin its business, it is maybe a little bit of a grease payment. It gets the guy working a little bit faster, gets that thing happening quicker and gets them a little up on the competition.

We have added to this bill the provision that that would become illegal. In the past bill, there was a provision for that sort of thing; it was for something that was not business related, just part of the regular goings on. That will no longer be the case.

However, we will give them an opportunity to implement this. I believe there is a period of a year's time for that to take place. Once that takes place, this, too, will become part of the Criminal Code and will no longer be acceptable.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, it is important that we recognize that whether it is bribery, kickbacks or corruption, it does occur. A very small percentage of Canadian companies cause issues related to that whole area.

We have seen attempts in the past. I made reference to my colleague's attempt through the sunshine bill and other efforts to try to deal with this so that Canada could be playing a much stronger role, as opposed to following the lead of other nations. There is a high expectation for Canada to have a legislative process.

My question is for the member. To what degree is the government prepared to entertain amendments that would give this legislation more teeth and which would ultimately have it receive wider support outside of Canadian borders?

[Dave Van Kesteren]

Mr. Speaker, there are six amendments that will take place and will enhance the current legislation, the CFPOA.

This is a progressive movement. It is something the OECD has recommended for all nations. Canada is a leader, and Canada will continue to be a leader as we move forward and implement more changes. As Canadians, we will always be proud of business conducted outside the countries. Our companies will also be able to benefit from that gain, as well as the nations they conduct their business in.

[Greg Rickford, Conservative, Parliamentary Secretary to the Minister of Aboriginal Affairs and Northern Development]

Mr. Speaker, it sounds like Canada is on the right track.

Given our international reputation in these regards, does the member not think that some of this fighting corruption starts right here at home? More pointedly, does the member believe that the Leader of the Opposition, who has had some knowledge of corruption for more than 17 years and has not come clean with Canadians, might be a starting point in a discussion?

[Dave Van Kesteren]

Mr. Speaker, we conclude from this piece of legislation that it is wrong to use bribes. It is wrong to offer bribes and to accept bribes. The biggest reason is that the rule of law is foundational upon any community, government, organization to move forward. If we do not have those basic principles, that makes it impossible. We encourage that abroad, but of course we also encourage that as much here at home, too.

[Julian Fantino, Conservative, Minister of International Cooperation]

Mr. Speaker, I rise today to participate in the debate on Bill S-14, the fighting foreign corruption act.

This legislation highlights our government's intent to take further steps to combat corruption and bribery. The amendments included in Bill S-14 would ensure that Canadian companies continue to act in good faith in the pursuit of freer markets and expanded global trade.

Introduced in the other place on February 5, I am pleased that the legislation is moving quickly. It is my hope, as I am sure it is the hope of most reasonable people, that it will make its way through the chamber as expediently as possible and soon thereafter be enacted. I hope that members will agree that the fighting foreign corruption act sends a strong signal that corruption is not the Canadian way of doing business and highlights our own expectations that other countries follow suit.

Bill S-14 makes a number of amendments to the Corruption of Foreign Public Officials Act, which has been in force since 1999. Canada passed that act to implement our international obligations under the Organisation for Economic Co-operation and Development, or OECD, Anti-Bribery Convention, and two more anti-corruption conventions passed by the Organization of American States and the United Nations.

Canada has long been committed to the OECD Anti-Bribery Convention and the efforts of, in particular, the OECD working group on bribery. In fact, in February, Canada submitted to the secretariat our follow-up report on the implementation of the convention. We are also required to report annually to both houses of Parliament. The issue that we want to stress is that we are committed to continuing to remain open and transparent in communicating our government's actions in fighting foreign corruption.

Despite our commitment to this issue, over the last number of years, international anti-corruption bodies and Canadian stakeholders have urged us to strengthen our laws. The OECD working group on bribery issued a report in March 2011 that raised specific concerns with regard to the strength of Canada's current legislation. As I have previously stated, we were pleased to submit a report to them earlier this year highlighting Bill S-14, which shows distinct progress.

Another important stakeholder in the fight against corruption is Transparency International, which also recently came forward to make the case that Canada could do more. I am pleased to tell the House that, following the introduction of Bill S-14, Janet Keeping, chair and president of Transparency International, said that Transparency International Canada was delighted that the federal government is moving to strengthen the Corruption of Foreign Public Officials Act in accordance with Canada's international obligations, and encourages the government to ensure that the RCMP have the resources necessary to enforce the particular act effectively. She also said that legal changes of the kind proposed are only as good as the government's commitment to making the law meaningful on the ground.

Canada's former Foreign Affairs minister, John Manley, also complimented these recent steps. He said that good corporate citizenship at home and abroad is essential to Canada's economic success, and that these latest measures aimed at eliminating corruption and bribery would strengthen Canada's already strong reputation for good governance and ethical business practices.

For those unfamiliar with the act, the CFPOA makes it a crime in Canada to bribe a foreign public official to gain a business advantage abroad. It is a comprehensive step against the corruption of foreign officials, especially when read in conjunction with existing offences in the Canadian Criminal Code.

It makes it possible to prosecute, say, a conspiracy to commit or an attempt to commit such a bribery. It covers aiding and abetting the commission of bribery, an intention in common to commit bribery, and counselling others to commit bribery. Laundering property and the proceeds of crime, including the proceeds of bribery offences, as well as the possession of property and proceeds, are already offences under the Criminal Code. The new offences being created in the CFPOA will also be captured by these Criminal Code provisions once they are in force.

Bill S-14 proposes to make six amendments to the corruption of foreign public officials act.

First, there is the introduction of a nationality jurisdiction which allows Canada to prosecute foreign bribery by Canadians or Canadian companies based on their nationality and regardless of where the bribery takes place in the world. Currently we can only do so after proving a real and substantial link between the offence and Canadian territory.

The second amendment would specify which authority can lay charges under the act. In this case, the RCMP would be the entity. In 2008, the RCMP international anti-corruption unit was established, which is dedicated to raising awareness about and enforcing the CFPOA. Currently this act does not place a limit on who is able to lay charges, but this amendment will ensure that a uniform approach is taken across the country. It highlights our government's faith in the work of the unit, and it sends a strong signal to Canadian businesses that they should contact the RCMP if they have a problem with foreign bribery.

The third amendment being proposed by Bill S-14 seeks to clarify the scope of the act by eliminating the words “for profit” from the definition of business. This would ensure that the CFPOA is not limited to bribes paid by for-profit enterprise or just in the course of business which is currently profitable.

Under Bill S-14, we are also proposing to increase the maximum penalty under the act to a maximum jail term of 14 years. The foreign bribery offence under this act is currently punishable by a maximum of five years' imprisonment and unlimited fines. The possibility of unlimited fines will remain as is.

In developing these amendments, our government was well aware of the implications they would have for Canadian businesses operating abroad. The global economy is still in a fragile state, and the number one priority for our government is securing jobs, growth and long-term prosperity for Canadians and Canadian businesses. That is why in January 2012, the Department of Foreign Affairs undertook consultation in the form of a workshop on new ideas for Canada's fight against foreign bribery. Over 30 stakeholders, as my hon. friend alluded to earlier, participated in this event, and these were from businesses, academia, non-government agencies and various other governmental departments.

At that time, Canadian stakeholders unanimously supported increasing penalties under the act to deter Canadian companies from engaging in foreign bribery. For this reason, and as I have already stated, Bill S-14 proposes to increase the maximum jail time from a maximum of five years' imprisonment and unlimited fines to a maximum of 14 years' imprisonment and unlimited fines.

The fifth amendment included in the fighting foreign corruption act creates a new “books and record” offence. Although there are already offences under the Criminal Code that criminalize falsification of books and records, they are not specific to foreign bribery. The penalties are stated.

The last item, and perhaps most significant amendment being proposed by Bill S-14 would eliminate the so-called “facilitation payments” exception under the CFPOA. Currently the CFPOA states that payments made to expedite or secure the performance by a foreign public official of any act of a routine nature do not constitute bribes for the purposes of the CFPOA.

I hope we all will see the merit and worth in this leadership role that Canada has taken in fighting corruption at home and abroad.

[Philip Toone, NDP, Gaspésie—Îles-de-la-Madeleine, QC]

Mr. Speaker, I would like to thank the minister for his speech.

Based on how he presented the bill, it is clear that we should support it so that it can be referred to committee and debated further. It deserves our attention and support, at least at second reading.

The member mentioned that the bill would send a signal that wrongdoing should be denounced, that people who witnessed wrongdoing should report it to the RCMP.

Would the bill also an effect on our ministries here in Canada when exaggerated payments are being brought to the fore? For example, Public Works was looking into buying a couple of arctic explorers. We are not even going to get the ships, we are just going to get the design, for $100 million. Other countries, such as Norway, got two ships for the same price. Then, for example, the F-35s, where we would be paying $38 billion for planes that would not even work in our Arctic.

Would the bill have any impact on the government's incredible waste and, quite frankly, questionable tactics?