19/10/2023 - Canada has undertaken important legislative reforms to enhance its foreign bribery framework since 2011, including the Remediation Agreement (RA), a non-trial resolution mechanism introduced in 2018. Despite these commendable efforts, Canada’s enforcement of the foreign bribery offence remains low, with only two individuals and four companies sanctioned since the entry into force of the country’s foreign bribery legislation nearly 25 years ago. Canada must enhance its capacity to detect foreign bribery by introducing effective whistleblower protection and clarifying policies surrounding self-reporting by companies. Canadian agencies and law enforcement must also collect comprehensive data on foreign bribery, to help assess the impact of its enforcement policies and priorities. Providing the public with easily accessible information on resolved foreign bribery cases is also critical to raise awareness and build trust, and would contribute to enhancing enforcement.
The 45-country Working Group has just completed its Phase 4 evaluation of Canada’s implementation of the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions and related instruments. The report expresses concerns about Canada’s efforts to implement the Convention and to proactively detect, investigate and prosecute foreign bribery.
The Working Group has accordingly recommended that Canada:
- Conduct an analysis and develop an action plan to address challenges impeding enforcement of foreign bribery and related offences.
- Issue guidance on the criteria regarding the use of non-trial resolutions.
- Ensure that a company can be held liable where management failed to prevent foreign bribery by an employee, in line with the Convention standards.
- Take immediate measures to make public and accessible important elements of resolved foreign bribery cases, irrespective of their method of resolution.
- Raise awareness with relevant parts of the government on recently enacted institutional safeguards to protect prosecutors from undue interference in prosecuting foreign bribery.
- Promptly enact comprehensive whistleblower protection legislation for foreign bribery.
- Maintain comprehensive statistics on the detection, investigation and prosecution of foreign bribery and related offences.
The report also notes several positive developments. Canada introduced legislative reforms to strengthen its foreign bribery legislative framework, including increasing the sanctions available under its foreign bribery legislation, repealing the facilitation payment exemption, and introducing nationality jurisdiction for foreign bribery offences. The adoption of the RA framework has the potential to significantly enhance foreign bribery enforcement. The Working Group welcomes the conclusion of the first foreign bribery RA in 2023 and encourages Canada to ensure that the mechanism reaches its full potential, including by issuing guidance. Canadian law enforcement authorities have developed a useful awareness raising programme, and responded positively to their foreign counterparts, in investigating reports received from both foreign authorities and international organisations. The Working Group also welcomes updated prosecutorial guidelines clarifying that factors prohibited by the Convention (i.e., national economic interest, the potential effect upon relations with another State or the identity of the accused) must not be taken into account in prosecuting foreign bribery cases, or when inviting companies to enter an RA.
The Working Group adopted the report on Canada on 12 October 2023. The report is part of the Working Group’s fourth phase of monitoring, launched in 2016. Phase 4 looks at the evaluated country’s particular challenges and positive achievements. It also explores issues such as detection, enforcement, corporate liability, and international co-operation, as well as covering unresolved issues from prior reports. Pages 89-93 of the report contain the Working Group’s recommendations to Canada. Canada will report to the Working Group in October 2025 on all recommendations and its enforcement efforts.
For further information, journalists are invited to contact Amelia Godber, Communications Officer, OECD Anti-Corruption Division (+33 (0)1 45 24 85 75). For more information on Canada’s work to fight corruption, please visit: https://www.oecd.org/daf/anti-bribery/canada-oecdanti-briberyconvention.htm.