Evidence of meeting #87 for Foreign Affairs and International Development in the 41st Parliament, 1st Session. (The original version is on Parliament’s site.) The winning word was s-14.
A recording is available from Parliament.
12:50 p.m.
Conservative
12:50 p.m.
NDP
Paul Dewar NDP Ottawa Centre, ON
I wanted to propose the following. Since we've heard from witnesses a couple of concerns, and they're not major.... We're going to support the bill, and I think people are aware of that, and I think everyone's supportive of the bill, but there are a couple of issues that were brought up during the brief period we had to review this. One of them, which Mr. Dechert brought it up, is with regard to the section that deals with increasing the sentencing to 14 years, and looking at how that could be applied when you're looking at domestic law being different in, say, five years.
The facts around the issue of facilitation payments and how this might touch on or affect charitable organizations were valid concerns that were brought up. I'm wondering if the government would be open to having a provision for review put into the bill, so that after five years, the government would commit to reviewing the legislation.
I say that, Mr. Chair, for the aforementioned reasons. As I said, I think everyone around this table is in support of the bill, but given the concerns around applications and at least two things that I just mentioned, including in terms of the maximum penalty, a concern that Mr. Dechert shares, could we consider putting into the bill a review after five years of the legislation coming into force? I'm just wondering if we could have a discussion about an amendment on a five-year review.
12:50 p.m.
Conservative
Bob Dechert Conservative Mississauga—Erindale, ON
Mr. Chair, my understanding of the legislation is that we are raising the bar here. What I believe we heard from the officials and from the Canadian Bar Association is that under domestic law there is a range of offences and the penalties, from 5 to 14 years, depending on the offence. Bribing a judge is 14 years.
Under this legislation, there is no minimum penalty, which is usually the objection raised by the opposition. The judge can impose any sentence from a day to 14 years. There is also the opportunity for probation. We heard from Transparency International Canada, an organization that is directly involved in these issues. It is a non-governmental organization and it represents the entire range of views in Canada. There was extensive consultation done with Transparency International. We heard from Ms. Keeping that they think this penalty clause is appropriate. They think Canada should send a strong message to Canadian businesses that these types of bribes are not tolerable. We hope this will be in line with what other countries are doing.
With respect to facilitation payments, we know, because this is something new, that Canadian companies need time to adjust their policies and processes and procedures. That's why there is a provision in Bill S-14 providing for implementation at a later date. It would not be required to go back to Parliament, which would be a long and involved process. Of course, the opposition and any other Canadian can put pressure on the government, both through Parliament and outside of Parliament, to bring those provisions into force, which they can then do with the stroke of a pen. That is actually a fairly effective way of dealing with it.
With respect to the point about NGOs, the Canadian Bar Association pointed out that only organizations that carry on a business, a profession, or a calling would be caught by these prohibitions. Clearly, the Red Cross or Doctors Without Borders is not a business, profession, or calling. If the Red Cross had to pay some small facilitation payment to get food or medical supplies into an affected country, it's hard to see that there would be any risk of prosecution under Bill S-14, since the Red Cross is not a business, profession, or calling. That's pretty clear. I also think you have to rely on prosecutorial discretion not to lay a charge in what is essentially a de minimis situation.
For all those reasons, I don't think we need to add another provision to this bill. I also think what we're doing here is raising the bar. This is a modern statute with modern language. There may be an argument that the Criminal Code provision should be revisited, and such an argument could be taken up at a later date.
Therefore, I would suggest we leave the legislation as drafted, and pass it accordingly.
Thank you.
12:55 p.m.
NDP
Paul Dewar NDP Ottawa Centre, ON
I thank my colleague for that.
Just to be clear, what we're saying is that we should have a review after five years. I was pointing out some of the concerns that were raised. Mr. Dechert is well aware that the application of domestic law is such that it will be different from the way this legislation is written. That was a point you raised, and other people had concerns about that. It's something we've done in legislation before, when concerns were raised. I think it goes without saying.
I have a question based on Mr. Dechert's understanding of the terms. I want to get from the officials their understanding of the humanitarian sector. Would they define it as a profession or a calling? Could we get their feedback on that?
12:55 p.m.
Marcus Davies Legal Officer, Criminal, Security and Diplomatic Law Division, Department of Foreign Affairs and International Trade
Thank you very much.
This issue has come up a number of times. It's important to remember that the legislation applies to business transactions to retain or gain an advantage; it's not simply any bribe. If you have a payment where someone's in a situation in which they're under duress and they feel they have to pay it, then it's likely not going to be covered by the CFPOA. That's the answer to the question.
I think what you would also like to know is how we deal with it in a scenario.
TI, Transparency International, which is supported by a number of NGOs in humanitarian situations, has guidelines they have put out for how you deal with corruptions in humanitarian scenarios. They have a number of guidelines and best principles. Those guidelines and best principles emphasize monitoring; evaluation; preparation up front to avoid risky environments, such as scenarios where you're going for visas and issues like that; transparency of an organization; reporting up to management; and engagement with law enforcement. Then it refers to scenarios where you may be forced, under duress, to pay. But if you're under duress to pay, you don't have the intent of securing a business advantage.
So our view of the CFPOA and this legislation is that it's not going to affect humanitarian interventions. The support from the major civil society dealing with corruption has been to eliminate bribery. Under the Paris Declaration on Aid Effectiveness, the principle is for us to eliminate bribery, and in the most recent U.N. report in chapter 10 on their commitments to sustainable development for 2015, eliminating bribery is one of the key issues.
Our view is the legislation will not affect humanitarian intervention, and further, the measures proposed are supported by what is going on internationally by civil society and by government.
1 p.m.
NDP
Paul Dewar NDP Ottawa Centre, ON
Thank you for that.
I just want to note that there's a little bit of grey here from what we've just heard—and fair enough, because we're talking about how law can be interpreted and applied. It remains a concern. It's a bit different from what we heard Mr. Dechert say on the humanitarian sector: it's not as black and white as Mr. Dechert suggested.
We're wanting to put forward an amendment to have a review in five years. I gather the government is not willing to accept that amendment.
1 p.m.
An. hon. member
So we can vote, if you like.
1 p.m.
Conservative
1 p.m.
Some hon. members
Agreed.
1 p.m.
Some hon. members
Agreed.
1 p.m.
Some hon. members
Agreed.
1 p.m.
Conservative
1 p.m.
Some hon. members
Agreed.
1 p.m.
Conservative
The Chair Conservative Dean Allison
Thank you very much.
We will meet on Tuesday to discuss the Jewish refugee report and the OAS report.
Thank you very much to our officials from DFAIT.
With that the meeting is adjourned.