S-14
First Session, Forty-first Parliament,
60-61 Elizabeth II, 2011-2012-2013
SENATE OF CANADA
BILL S-14
An Act to amend the Corruption of Foreign Public Officials Act
first reading, February 5, 2013
LEADER OF THE GOVERNMENT IN THE SENATE
90684
SUMMARY
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.
Also available on the Parliament of Canada Web Site at the following address:http://www.parl.gc.ca
1st Session, 41st Parliament,
60-61 Elizabeth II, 2011-2012-2013
senate of canada
BILL S-14
An Act to amend the Corruption of Foreign Public Officials Act
Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
SHORT TITLE
Short title
1. This Act may be cited as the Fighting Foreign Corruption Act.
1998, c. 34
CORRUPTION OF FOREIGN PUBLIC OFFICIALS ACT
2. (1) The definition “peace officer” in section 2 of the Corruption of Foreign Public Officials Act is repealed.
(2) The definition “quiconque” in section 2 of the French version of the Act is repealed.
(3) The definition “business” in section 2 of the Act is replaced by the following:
“business”« affaires »
“business” means any business, profession, trade, calling, manufacture or undertaking of any kind carried on in Canada or elsewhere.
(4) Section 2 of the French version of the Act is amended by adding the following in alphabetical order:
« quiconque » ou « personne »“person”
« quiconque » ou « personne » S’entend au sens de l’article 2 du Code criminel.
3. (1) Subsection 3(2) of the Act is replaced by the following:
Punishment
(2) Every person who contravenes subsection (1) is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years.
(2) Subsections 3(4) and (5) of the Act are repealed.
4. The Act is amended by adding the following after section 3:
Accounting
4. (1) Every person commits an offence who, for the purpose of bribing a foreign public official in order to obtain or retain an advantage in the course of business or for the purpose of hiding that bribery,
(a) establishes or maintains accounts which do not appear in any of the books and records that they are required to keep in accordance with applicable accounting and auditing standards;
(b) makes transactions that are not recorded in those books and records or that are inadequately identified in them;
(c) records non-existent expenditures in those books and records;
(d) enters liabilities with incorrect identification of their object in those books and records;
(e) knowingly uses false documents; or
(f) intentionally destroys accounting books and records earlier than permitted by law.
Punishment
(2) Every person who contravenes subsection (1) is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years.
Offence committed outside Canada
5. (1) Every person who commits an act or omission outside Canada that, if committed in Canada, would constitute an offence under section 3 or 4 — or a conspiracy to commit, an attempt to commit, being an accessory after the fact in relation to, or any counselling in relation to, an offence under that section — is deemed to have committed that act or omission in Canada if the person is
(a) a Canadian citizen;
(b) a permanent resident as defined in subsection 2(1) of the Immigration and Refugee Protection Act who, after the commission of the act or omission, is present in Canada; or
(c) a public body, corporation, society, company, firm or partnership that is incorporated, formed or otherwise organized under the laws of Canada or a province.
Jurisdiction
(2) If a person is alleged to have committed an act or omission that is deemed to have been committed in Canada under subsection (1), proceedings for an offence in respect of that act or omission may, whether or not that person is in Canada, be commenced in any territorial division in Canada. The person may be tried and punished for that offence as if the offence had been committed in that territorial division.
Appearance of accused at trial
(3) For greater certainty, the provisions of the Criminal Code relating to the requirements that an accused appear at and be present during proceedings and the exceptions to those requirements apply to proceedings commenced in any territorial division under subsection (2).
Person previously tried outside Canada
(4) If a person is alleged to have committed an act or omission that is deemed to have been committed in Canada under subsection (1) and they have been tried and dealt with outside Canada for an offence in respect of the act or omission so that, if they had been tried and dealt with in Canada, they would be able to plead autrefois acquit, autrefois convict or pardon, they are deemed to have been so tried and dealt with in Canada.
Exception for foreign trials in absentia
(5) Despite subsection (4), a person may not plead autrefois convict to a count that charges an offence in respect of the act or omission if
(a) the person was not present and was not represented by counsel acting under the person’s instructions at the trial outside Canada; and
(b) the person was not punished in accordance with the sentence imposed on conviction in respect of the act or omission.
Laying an information
6. An information may be laid under section 504 of the Criminal Code in respect of an offence under this Act — or a conspiracy to commit, an attempt to commit, being an accessory after the fact in relation to, or any counselling in relation to, an offence under this Act — only by an officer of the Royal Canadian Mounted Police or any person designated as a peace officer under the Royal Canadian Mounted Police Act.
COMING INTO FORCE
Order in council
5. Subsection 3(2) comes into force on a day to be fixed by order of the Governor in Council.
Published under authority of the Senate of CanadaAvailable from:Publishing and Depository ServicesPublic Works and Government Services Canada
Explanatory Notes
Corruption of Foreign Public Officials Act
Clause 2: (1) to (3) Existing text of the definitions:
“peace officer” means a peace officer as defined in section 2 of the Criminal Code.
“person” means a person as defined in section 2 of the Criminal Code.
“business” means any business, profession, trade, calling, manufacture or undertaking of any kind carried on in Canada or elsewhere for profit.
(4) New.
Clause 3: (1) Existing text of subsection 3(2):
(2) Every person who contravenes subsection (1) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.
(2) Existing text of subsections 3(4) and (5):
(4) For the purpose of subsection (1), a payment is not a loan, reward, advantage or benefit to obtain or retain an advantage in the course of business, if it is made to expedite or secure the performance by a foreign public official of any act of a routine nature that is part of the foreign public official’s duties or functions, including
(a) the issuance of a permit, licence or other document to qualify a person to do business;
(b) the processing of official documents, such as visas and work permits;
(c) the provision of services normally offered to the public, such as mail pick-up and delivery, telecommunication services and power and water supply; and
(d) the provision of services normally provided as required, such as police protection, loading and unloading of cargo, the protection of perishable products or commodities from deterioration or the scheduling of inspections related to contract performance or transit of goods.
(5) For greater certainty, an “act of a routine nature” does not include a decision to award new business or to continue business with a particular party, including a decision on the terms of that business, or encouraging another person to make any such decision.
Clause 4: New.