CHAPTER 18 Foreign Anti-Corruption Measures
Books and Records Offence The CFPOA also includes a separate offence prohibiting certain deceptive bookkeeping practices “for the purposes of bribing a foreign public official” for a business advantage, or to hide such bribery – for example, keeping separate accounts that do not appear in official records, not recording transactions, recording non-existent expenditures, falsely describing entries, and early destruction of records. It remains to be seen whether Canadian courts will interpret the concept of “bribery” in this records offence as coinciding with the general CFPOA prohibition on giving certain benefits to foreign public officials, in which case this offence may not add much to the anti-corruption offence. In any event, this records offence is narrower than a similar offence under the U.S. Foreign Corrupt Practices Act , which imposes a general obligation on securities issuers to keep accurate records and does not require that any inaccuracy be for the purpose of bribery. Offences in the Criminal Code and Income Tax Act prohibiting forgery or falsification of documents may also cover some of the same conduct as the CFPOA’s books and records offence.
To be considered an advantage or a benefit, it must be a material or tangible economic advantage. Therefore relatively small benefits, such as token gifts, do not constitute an offence under the CFPOA. However, it is clear that the offence can apply to non-monetary benefits, such as free or subsidized housing, tuition fees or even handling all the logistics of planning a trip (such as researching flights and hotels). The CFPOA contains saving provisions that allow for the payment of certain types of benefits. For example, benefits that are permitted or required under the laws of the foreign state or public international organization for which a foreign public official performs duties or functions do not violate the anti-corruption offence. The CFPOA also does not prohibit payment of reasonable expenses incurred in good faith by or on behalf of a foreign public official that are directly related to the execution of a contract with the foreign state for which the official performs duties or functions. The CFPOA no longer provides an exception for “facilitation payments,” which are payments made to expedite or secure the foreign public official’s performance of a routine act that is part of the official’s duties or functions. In addition, the fact that a corrupt practice is consistent with the local business culture of the foreign official is not a valid defence under the CFPOA.
The CFPOA expressly applies to conduct outside Canada by Canadian citizens and Canadian corporations.
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