On Friday, March 31, TI Canada made a submission to the Organization of Economic Co-operation and Development’s (OECD) open call for contributions for Canada’s fourth phase of monitoring the implementation of the OECD Anti-Bribery Convention.
Canada’s phase three of monitoring was held in 2010 with the report published in 2011.
TI Canada’s report covers five sections:
Legislative Amendments covering the Corruption of Foreign Public Officials Act (CFPOA) and the Criminal Code;
Investigations and Cases covering CFPOA and Criminal code cases, their repercussions and review of Canada’s enforcement efforts;
Non-Criminal and Preventive Anti-Corruption Tools, which examines tools and actors outside of the CFPOA and Criminal Code that could support Canada addressing foreign corruption; and
TI Canada recommendations for action as they relate to the implementation of the OECD Convention.
Based on the reviews and analysis provided in the submission, TI Canada makes the following recommendations for Canada in upholding and enforcing its implementation of the OECD Convention:
On anti-corruption legislation, the Government of Canada should:
Publicise clear information and educational materials to the general public about the purposes of the RA regime and how it works;
Develop guidance for organisations on how to approach authorities for an RA including describing circumstances under which a remediation agreement might be offered to a corporate offender, which conditions can be imposed, and how companies can cooperate with law enforcement authorities
Enact regulations, as required by the current legislation, to ensure the consistent and adequate implementation of the RA regime, including:
the form of remediation agreements;
processes and procedures involving independent monitors.
Ensure that the RA process is transparent and, whenever possible, that there is public information about the facts, natural and legal persons concerned, reasons to resort to an RA, sanctions imposed and their rationale, and remediation measures, such as compliance regimes and monitorships.
On enforcement, the volume of litigation in Canada is not enough to create certainty and provide guidance about how legislation will be interpreted and applied. However, more criminal litigation may not be the best avenue to be pursued in order to achieve that goal, especially considering that courts have recently interpreted legislation in restrictive ways, increasing the obstacles to successfully obtain criminal convictions. However, steps the Government of Canada can take are:
Engage in strategic thinking about how to explore other avenues to combat corruption that are not entirely dependent on the criminal justice system e.g. those involving securities regulators.
Increase the resources of the RCMP dedicated to corruption cases, including as part of the government’s proposed Canadian Financial Crime Agency.
There are recommendations for government and non-government actors to consider in non-criminal and preventative anti-corruption tools, including:
The federal government should strike an agreement with provinces and territories whereby all provincially and territorially registered companies would be required to upload their corporate beneficial ownership data directly to the federal corporate beneficial ownership registry;
NRCAN should establish a reporting system on ESTMA violations to share data with the RCMP;
The Government of Canada should amend the Integrity Regime so that debarments can weigh the severity of cases, as well as monitor companies on the debarment list in order to consider efforts by companies to reform themselves;
The Government of Canada and Canadian law enforcement should ensure outreach with civil society and engage them on areas of OECD Convention implementation improvement;
The Government of Canada should publish statistics on foreign bribery enforcement;
The Canadian private sector should engage the Government of Canada and civil society on how to proactively reduce corruption risk in overseas jurisdiction through methods such as collective action.
You can read TI Canada’s full submission to the OECD’s Phase Four monitoring of Canada here.
Quick Facts and Links About the OECD Anti-Bribery Convention:
The Convention on Combating Bribery of Foreign Public Officials in International Business, or the Ant-Bribery Convention entered into force in 1999. The 38 OECD counters and 6 non-OECD countries - Argentina, Brazil, Bulgaria, Peru, Russia and South Africa - have adopted the Convention. Canada entered into force of the Convention on 15 February, 1999. Read the full text of the Anti-Birbery Convention here.
For more on the country monitoring process of the Anti-Bribery Convention, see here.
Read Canada’s Phase Three monitoring report here.
For Further Information, Please Contact:
E-mail: ti-can@transparencycanada.ca
Phone: 416-488-3939