Good morning, Mr. Chair, and honourable members.
The Anti-Corruption Team of the Canadian Bar Association shares the convictions expressed in Bill S-14. As expressed in the Convention, bribery in international business transactions raises serious moral and political concerns, undermines good governance and economic development, and distorts international competitive conditions. That is why the ACT generally supports Bill S-14.
We do, however, have two concerns to bring to your attention today: first, the difficulties associated with repealing the facilitation exception at this time; and second, the difficulties created by increasing the maximum sentence to 14 years.
Turning first to facilitation payments, these are small payments made to officials to get them to do their jobs. They're different from payments made to obtain a business advantage, in the sense of a bribe to get a contract.
The current international consensus seems to be that facilitation payments should be discouraged, but it is not clear that the time is right to require the criminalization of facilitation payments made to foreign officials. Bill S-14 appeared to us to reflect this consensus by providing for the repeal of the facilitation payments exception, but not yet, since this repeal will come into force on a date to be fixed by the Governor in Council.
In the view of the CBA anti-corruption team, or ACT, this is not an optimal way of dealing with facilitation payments. Parliament, not the cabinet, should determine when the time is right, and it should do so after a fuller consultation with Canadians who do business abroad. Some of the important considerations that need to be addressed are as follows.
First is the impact on disaster relief. Charities that deliver humanitarian relief need to be authorized to do what it takes to save lives. One in-house counsel with a major charity told us that feared the day when facilitation payments would be illegal and a vital delivery of food would be held up in some hopelessly corrupt country by a jaded customs official who demanded $50 before releasing the food. The question, he said, would whether they could pay the man $50. If they did not, a thousand people or more would die.
There are other exceptions. Sometimes, for instance, people have no choice but to pay. In some countries, we're told, exit visas are routinely held up until money is paid. In others, the police demand a payment before they will even take a report of a crime. There are reports of cases where officials threaten the health or safety of people in order to extort money. I would think that most people would agree that in those circumstances the payment should not be a crime.
Thirdly, on penalties, as Bill S-14 stands, people who are coerced into making facilitation payments do so in fear of committing an indictable offence punishable by up to 14 years in jail. In other words, this is among the most serious offences on the books in Canada. The question that needs to be asked is whether or not this is an appropriate treatment for small payments of this nature.
For these reasons, the CBA-ACT recommends not proceeding with the repeal of the facilitation payments exception in this bill.
The second general point is the increase in penalties.
The maximum penalty under current legislation is five years’ imprisonment. The bill proposes that the maximum jail term be increased to 14 years.
Fourteen years will be the new penalty, and this will make the corruption offence one of the most serious offences on the books. By way of comparison, this 14-year maximum is higher than the maximum sentence for domestic corruption, for instance, which is generally five years, although it can be 14 years in some cases; for child pornography, which is 10 years; for abandoning a child, which is five years; for criminal negligence causing death with a firearm, which is four years; or for assault causing bodily harm, which is 10 years.
The increase in penalty from 5 to 14 years has important knock-on effects. Fourteen years is effectively a magic number in Canadian criminal law. Offences that carry a maximum sentence of 14 years are not eligible, first of all, for discharges, either conditional or absolute. Incidentally, this responds to a question from one of your colleagues the last day, when she asked about the availability of discharges.
Conditional sentences—that is, sentences served in the community—will not be available sentencing options for this offence. This severely constrains the range of remedial outcomes that are available to prosecutors, defence counsel, and the courts. It will, to put it bluntly, make it difficult to make the punishment fit the crime.
Suppose, for example, a Canadian business person is at the airport, trying to leave a developing country. The customs officials demand a facilitation payment. He pays in order to be allowed to leave the country and return to Canada. Has this person really committed one of the most serious offences on the books in Canada? Does this person deserve to have a criminal record? If the answer is no, then the penalty needs to be changed so that discharges remain available.
With respect, prosecutorial discretion is not the answer. The law should be as clear as possible so as to provide reliable guidance. I would also add that it is not the custom in Canada for the prosecution to issue guidance on the substance of offences. This isn't done, except perhaps in the realm of competition law, unlike, for example, in the United Kingdom, where they do have fairly extensive guidance on their Bribery Act.
Suppose a Mr. 10% somewhere requires a Canadian business person to pay a bribe to get a contract. Suppose the contract is relatively small, and the business person is a first-time offender. This would fit within the existing offence under the act. Of course, it's not a facilitation payment, it is a bribery offence. Do we really need to lock this person up? Why not impose a sentence to be served in the community for a person who does not pose a risk to society?
Under Bill S-14 as it stands, this outcome would not be available, although I should hasten to add that probation would remain available.
Thank you, honourable members. Those are my submissions.