Blog

An Overview of the Corruption of Foreign Public Officials Act (CFPOA)

Posted by:

The Corruption of Foreign Public Officials Act (CFPOA) is a Canadian piece of legislation that was passed in 1998 and came into force in 1999. It deals with the bribery of foreign public officials. It was created in order to fulfil Canada’s international obligations as a member of the Organisation for Economic Co-operation and Development (OECD).

The offence of bribery is defined in section 3(1) of the CFPOA. There are essentially 5 elements to the definition. Firstly, the offence must be committed by a “person”. The definition of “person” encompasses individuals as well as various forms of business associations. An act which constitutes a bribe may be direct or indirect. It may be an actual giving or offer or agreement to give. The thing given includes any benefit. The bribe may be given either directly to the foreign public official or through a third party. Thirdly, the ‘bribe’ must be made with the intent to gain a business-related advantage. Fourthly, the ‘bribe’ must be given to the foreign public official or to any person for his or her benefit. Fifthly, the ‘bribe’ must be to either induce the foreign public official to do or omit to do something in his or her official capacity or to induce the official to use his or her position to influence any acts or decisions of the foreign state or public international organization for which the official performs duties or functions.

Currently, under the CFPOA, the offence of bribery is considered an indictable offence which carries a maximum jail sentence of 5 years and / or a fine, for which there is no upper limit.

Currently, there are several defences permitted under this legislation to the charge of bribery. The first is that the payment was one which was either permitted or required under the laws of the foreign state or public international organization for which the official performs duties or functions. The second defence is that the payment was to cover reasonable expenses incurred in good faith by or on behalf of the foreign public official. The expense must be directly related to the promotion, demonstration or explanation of the person’s products and services or to the execution or performance of a contract between the person and the foreign State for which the official performs duties or functions. The third defence is that, in fact, the payment was not a bribe but a facilitation payment. A facilitation payment is one which 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.

There is no limitation period for prosecution under the CFPOA.

Currently, in order for the Canadian courts to try a charge of bribery under the CFPOA, the offence must have been committed in whole or in part in Canada.

Allegations under the CFPOA are investigated by the Commercial Crime Branch of the Royal Canadian Mounted Police (RCMP). The RCMP have set up two International Anti-Corruption units. They are located in Calgary and Ottawa.

0


About the Author