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Addressing the Corruption of Foreign Public Officials: Developments and Challenges within the Canadian Legal Landscape

  • JOANNA HARRINGTON

Abstract

With 2018 marking the twentieth anniversary of Canada’s Corruption of Foreign Public Officials Act, an opportunity presents itself to take stock of both developments and challenges for the legislative scheme. As demonstrated by a review of the parliamentary record, the desire to enact legislation to criminalize the offering of an inducement to a foreign public official to secure a business advantage was decidedly international in nature, with Canada aiming to bolster the efforts of others to create a level playing field for companies operating abroad. Yet, despite good intentions, as well as amendments to strengthen the Act in 2013 and the passage of additional transparency obligations in 2014, Canada’s legislative scheme has not kept pace with the international and multi-jurisdictional realities of the problem to be addressed. Renewed interest needs to be paid to the demand side of a foreign bribery transaction. In addition, the confiscation or forfeiture of any ill-gotten gains must become a priority, with the touting of success in securing the voluntary payment of sizeable fines failing to provide for a sufficient accounting for the wrongs done, particularly if the victims of corruption, even as a class that needs clearer definition, are to be made a true concern of the Act. The challenges posed by matters of immunity and the need to improve matters of multi-jurisdictional cooperation also need further attention.

Le vingtième anniversaire, en 2018, de la Loi sur la corruption d’agents publics étrangers du Canada offre l’occasion de faire le point sur les développements et les défis de ce régime législatif. Comme en témoigne le bilan parlementaire, le désir d’adopter une loi criminalisant l’offre d’incitation à un agent public étranger afin de garantir un avantage commercial revêtait un caractère résolument international, le Canada cherchant à renforcer les efforts d’autres pour créer des conditions équitables pour les entreprises opérant à l’étranger. Malgré de bonnes intentions, ainsi que des amendements visant à renforcer la Loi en 2013 et l’adoption d’obligations de transparence supplémentaires en 2014, le régime législatif canadien n’a pourtant pas suivi le rythme des réalités internationales et multi-juridictionnelles du problème à traiter. Un intérêt renouvelé doit être versé du côté de la demande d’un pot de vin par un agent public étranger. En outre, la confiscation de tout gain mal acquis doit devenir une priorité, étant donné que les paiements volontaires d’amendes (souvent avancés comme preuve de succès du régime) n’assurent pas une responsabilité suffisante pour les torts causés — surtout si les victimes de la corruption, catégorie toujours mal-définie, doivent devenir une véritable préoccupation de la Loi. Les défis posés par les questions d’immunité et l’amélioration de la coopération multi-juridictionnelle doivent également faire l’objet d’une plus grande attention.

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1 SC 1998, c 34 [CFPOA].

2 Established in 1961, the Organisation for Economic Co-operation and Development (OECD) is an intergovernmental forum that brings together thirty-six developed states with advanced economies to focus on setting standards and sharing best practice with a view to promoting economic progress. See generally <https://www.oecd.org>.

3 First formed in 1975 as the Group of Six, with Canada joining in 1976, and Russia joining in 1998, the Group of Eight is a group of eight highly industrialized states that meets annually to foster consensus on global issues of pressing concern. Russia was ejected from the Group in 2014, following the annexation of Crimea, resulting in a return to the Group of Seven (G7) nomenclature. See generally, the “G7 Information Centre” maintained by the Munk School of Global Affairs at the University of Toronto, online: <http://www.g7.utoronto.ca/>.

4 17 December 1997, OECD Doc DAFFE/IME/BR(97)20 (1997), 37 ILM 1 (1998) (entered into force 15 February 1999; ratified by Canada 17 December 1998) [Anti-Bribery Convention].

5 Pub L 95-213, 91 Stat 1496; codified and later amended 15 USC §§ 78dd-1 et seq [FCPA].

6 See e.g. Neil Campbell, Elizabeth Preston, and Jonathan O’Hara, “Foreign Corrupt Practices: The Growth and Limitations of Canadian Enforcement Activity” (2013) 23:1 Ind Intl & Comp L Rev 35; Norm Keith, “Is Canada’s Anti-Corruption Law in Step with International Trends?” (2014) 15:3 Bus L Intl 223; Monica Podgorny and James B Musgrove, “Foreign Corrupt Practices Laws: Implications for the Canadian Natural Resources Sector” (2014) 14 Asper Rev Intl Bus & Trade L 161; Stephanie Stimpson, Jay Todesco, and Amy Maginley, “Strategies for Risk Management and Corporate Social Responsibility for Oil and Gas Companies in Emerging Markets” (2015) 53:2 Alta L Rev 259; Milos Barutciski and Sabrina A Bandali, “Corruption at the Intersection of Business and Government: The OECD Convention, Supply-Side Corruption, and Canada’s Anti-Corruption Efforts to Date” (2016) 52 Osgoode Hall LJ 231; see also Norm Keith, Canadian Anti-Corruption Law and Compliance, 2nd ed (Markham, ON: LexisNexis Canada, 2017).

7 Gerry Ferguson, Global Corruption: Law, Theory and Practice, 3rd ed (Victoria: self-published, 2018), online: <https://dspace.library.uvic.ca/handle/1828/9253> and <https://icclr.law.ubc.ca/resources/global-corruption-law-theory-and-practice/>; see also Stuart H Deming, Anti-Bribery Laws in Common Law Jurisdictions (New York: Oxford University Press, 2014); Cecily Rose, International Anti-Corruption Norms: Their Creation and Influence on Domestic Legal Systems (New York: Oxford University Press, 2015).

8 A civil action against corporate counsel for alleged legal breaches committed while acting as an investigative proxy for government agencies within the context of an alleged case of foreign bribery has been lodged with the Alberta courts. Bechir v Gowling Lafleur Henderson LLP, 2017 ABQB 214 at para 23; Bechir v Gowling Lafleur Henderson LLP, 2017 ABQB 667 at paras 14–16, 63–67.

9 R v Watts and Hydro-Kleen Systems Inc, [2005] AJ No 568 (QB); R v Niko Resources Ltd, [2011] AJ No 1586, 101 WCB (2d) 118 (Alta QB) [Niko Resources]; R v Griffiths Energy International Inc, [2013] AJ No 412 (QB) [Griffiths Energy].

10 R v Karigar, 2013 ONSC 5199, 108 WCB (2d) 210 [Karigar (2013)], appeal dismissed 2017 ONCA 576 [Karigar (2017)], application for leave to appeal to the Supreme Court of Canada dismissed 15 March 2018, No 37784. On sentencing, see R v Karigar, 2014 ONSC 3093, 113 WCB (2d) 373 [Karigar (2014)].

11 Chowdhury v The Queen, 2014 ONSC 2635; R v Wallace, 2017 ONSC 132.

12 Global Affairs Canada, Canada’s Fight against Foreign Bribery: Eighteenth Annual Report to Parliament (September 2016–August 2017) (6 October 2017), online: <http://www.international.gc.ca/trade-agreements-accords-commerciaux/topics-domaines/other-autre/corruption.aspx?lang=eng> [Eighteenth Annual Report].

13 Global Affairs Canada, Canada’s Fight against Foreign Bribery: Nineteenth Annual Report to Parliament (September 2017-August 2018) (5 October 2018), online: <http://www.international.gc.ca/trade-agreements-accords-commerciaux/topics-domaines/other-autre/corruption.aspx?lang=eng>.

14 Eighteenth Annual Report, supra note 12; see also Royal Canadian Mounted Police, “RCMP Charges SNC-Lavalin,” news release (19 February 2015) (no longer available online); SNC-Lavalin, “SNC-Lavalin Contests the Federal Charges by the Public Prosecution Service of Canada and Will Enter a Non-Guilty Plea,” press release (19 February 2015), online: <http://www.snclavalin.com/en/snc-lavalin-contests-the-federal-charges-february-19-2015>.

15 Daniel Leblanc, “RCMP Lays Corruption Charges after Landmark Bribery Case,” Globe and Mail (4 June 2014); Dave Seglins, “RCMP Charges U.S., U.K. Execs in Air India Foreign Bribery Case,” CBC News (4 June 2014); see also R v Barra and Govindia, 2017 ONSC 6088; R v Barra and Govindia, 2018 ONSC 2659; R v Barra and Govindia, 2019 ONSC 229.

16 “Canadian General Aircraft President Charged with Conspiring to Bribe Thai Officials in Plane Deal,” CBC News (24 November 2016).

17 Grant, Meghan, “Charges Dropped against Calgary Man Accused of Conspiring to Bribe Thai Officials in Jet Deal,” CBC News (6 December 2017).

18 Eighteenth Annual Report, supra note 12.

19 Global Affairs Canada, Canada’s Fight against Foreign Bribery: Seventeenth Annual Report to Parliament (September 2015–August 2016) (7 October 2016), online: <http://www.international.gc.ca/trade-agreements-accords-commerciaux/topics-domaines/other-autre/corruption.aspx?lang=eng>.

20 Global Affairs Canada, Canada’s Fight against Foreign Bribery: Sixteenth Annual Report to Parliament (September 2014–August 2015) (4 February 2016), online: <http://www.international.gc.ca/trade-agreements-accords-commerciaux/topics-domaines/other-autre/corruption.aspx?lang=eng>.

21 Two of these reports are on file with the author but no longer made available online. The third report, covering 2013–14, is available. Global Affairs Canada, Canada’s Fight against Foreign Bribery: Fifteenth Annual Report to Parliament (September 2013–August 2014) (3 October 2014), online: <http://www.international.gc.ca/trade-agreements-accords-commerciaux/topics-domaines/other-autre/corruption.aspx?lang=eng>.

22 Stephane Massinon, “RCMP Probe Calgary Mining Company over Bribery Allegations,” National Post (29 August 2011); Greg McArthur, “RCMP Raid Calgary Miner over Bribery Allegations,” Globe and Mail (29 August 2011).

23 For criticism, see MiningWatch Canada, “Mexican Network Deplores Conclusion of Canadian Investigation into Blackfire in Chicomuselo, Chiapas,” media release (11 March 2015), online: <https://miningwatch.ca/news/2015/3/11/mexican-network-deplores-conclusion-canadian-investigation-blackfire-chicomuselo>.

24 Julius Melnitzer, “Damned If You Do, Damned If You Don’t: The Perils of Self-Reporting Corporate Misdeeds,” Financial Post (19 April 2016). The Royal Canadian Mounted Police (RCMP) investigation was prompted by a voluntary disclosure by the company in 2012, with Nordion (Canada) being the successor company to Nordion, which traded on the New York Stock Exchange from 2004 to 2011, when the alleged bribery of Russian officials occurred.

25 In the Matter of Nordion (Canada) Inc, Securities Exchange Act of 1934 Release no 77290 and Administrative Proceeding File no 3-17153 (both dated 3 March 2016), online: <https://www.sec.gov/litigation/admin/2016/34-77290.pdf>.

26 In contrast with the United States, foreign bribery can only be pursued as a criminal matter in Canada, which also lacks a national securities regulator to pursue a case through administrative proceedings.

27 The financial market regulators were from Latvia, Estonia, Cyprus, the British Virgin Islands, Liechtenstein, and Finland. US Securities and Exchange Commission, “SEC Charges Engineer and Former Employer with Bribe Scheme in Russia,” Administrative Summary (3 March 2016), online: <https://www.sec.gov/litigation/admin/2016/34-77288-s.pdf>.

28 Within the OECD, the Working Group on Bribery in International Business Transactions tracks each country’s performance in addressing foreign bribery through a mandatory four-phased system of peer review monitoring. See generally OECD, “Corruption,” online: <http://www.oecd.org/corruption/anti-bribery/anti-briberyconvention/oecdworkinggrouponbriberyininternationalbusinesstransactions.htm>.

29 On the domestic influence of the Working Group on Bribery generally, see Rose, supra note 7, ch 2.

30 Fighting Foreign Corruption Act, SC 2013, c 26 [FFCA].

31 Economic Action Plan 2014 Act, No 2, SC 2014, c 39, s 376, bringing into existence the Extractive Sector Transparency Measures Act [ESTMA].

32 On the social costs of bribery, see e.g. Susan Rose-Ackerman, “The Law and Economics of Bribery and Extortion” (2010) 6:1 Annual Review of Law and Social Science 217 at 218–19. On the economic, cultural, and political costs of corruption generally, see Susan Rose-Ackerman and Bonnie J Palifka, Corruption and Government: Causes, Consequences, and Reform, 2nd ed (New York: Cambridge University Press, 2016).

33 See e.g. the investigative work of The Sentry, a non-governmental organization (NGO) examining the link between corruption and mass atrocities in several African states. The Sentry, “About Us,” online: <https://thesentry.org/about/>.

34 Saleh v Director of the Serious Fraud Office, [2017] EWCA Civ 18 at para 22 [Saleh (2017)].

35 On the intersection between national anti-corruption enforcement efforts and the sanctions regimes of multilateral development banks, see Juan G Ronderos, Michelle Ratpan, and Andrea Osorio Rincon, “Corruption and Development: The Need for International Investigations with a Multijurisdictional Approach Involving Multilateral Development Banks and National Authorities” (2016) 52 Osgoode Hall LJ 334; see also Sope Williams-Elegbe, Public Procurement and Multilateral Development Banks: Law, Practice and Problems (Oxford: Hart, 2017) at 171–216.

36 2016 SCC 15, [2016] 1 SCR 207 [Wallace].

37 A desire to focus greater attention on the victims of corruption has led some to espouse a human rights approach, an approach that has been ably critiqued in Cecily Rose, “The Limitations of a Human Rights Approach to Corruption” (2016) 65 ICLQ 405.

38 Helping Countries Combat Corruption: The Role of the World Bank (Washington, DC: World Bank, 1997) at 8.

39 Corruption within the private sector, sometimes referred to as private-to-private corruption or purely private sector conduct, may also take place but is beyond the chosen scope of this article.

40 Opinions differ as to whether bribery at common law was a general offence or a collection of several offences each designed to address different types of office holders. Monty Raphael, Bribery: Law and Practice (Oxford: Oxford University Press, 2016) at 2.15–2.27; see also Law Commission, Reforming Bribery (London: Her Majesty’s Stationery Office, 2008) at 5-6.

41 RSC 1985, c C-46 [Criminal Code].

42 Recommendation on the Tax Deductibility of Bribes of Foreign Public Officials, OECD Doc C(96)27/FINAL (17 April 1996), reprinted in (1996) 35 ILM 1311.

43 See Jinyan Li, Joanne E Magee, and J Scott Wilkie, Principles of Canadian Income Tax Law, 9th ed (Toronto: Thomson Reuters Canada, 2017) at 232–33, s 8.5(d)(i), citing United Color & Chemicals Ltd v Minister of National Revenue, [1992] 1 CTC 231, 92 DTC 1259 (TCC).

44 See Income Tax Act, RSC 1985, c 1 (5th Supp), s 67.5(1), introduced by An Act to Amend the Income Tax Act, SC 1991, c 49, s 46(1), and then extended to apply to foreign bribery by the CFPOA, supra note 1, s 10, when that Act entered into force in 1999. See also An Act to Amend the Taxation Act and Other Legislative Provisions, SQ 2004, c 8, s 91(1), with s 91(2) directing that the change has effect from 14 February 1999.

45 It was President Jimmy Carter who brought the US FCPA, supra note 5, into existence, in the wake of the Watergate investigations, after widespread disclosure that hundreds of American companies made payments to foreign officials and political parties. See e.g. Report of the Securities and Exchange Commission on Questionable and Illegal Corporate Payments and Practices, submitted to the U.S. Senate, Committee on Banking, Housing and Urban Affairs, May 1976 (Washington, DC: US Government Printing Office, 1976).

46 29 March 1996, OASTS No B-58 (entered into force 6 March 1997, ratified by Canada 1 June 2000) [Inter-American Convention against Corruption].

47 Acknowledged by Canada in The Corruption of Foreign Public Officials Act: A Guide (Ottawa: Department of Justice, 1999) at 1 [CFPOA: A Guide].

48 G8 Birmingham Summit, Final Communiqué (17 May 1998) at para 7, online: <http://www.g8.utoronto.ca/summit/1998birmingham/finalcom.htm>.

49 Entry into force was dependent on ratification by five of the top ten trading countries in the OECD. Anti-Bribery Convention, supra note 4, art 15(1). This meant that the convention had to “be ratified by five of the ten countries with the largest share of OECD exports, representing among them at least 60 percent of the combined total exports of the ten.” CFPOA: A Guide, supra note 47 at 2.

50 Debates of the Senate, 36-1, vol 137, No 100 (3 December 1998) at 2301 (Lloyd Axworthy).

51 Anti-Bribery Convention, supra note 4, art 1(1).

52 Ibid, art 2.

53 Ibid, art 3.

54 Law Commission, supra note 40 at para 3.33.

55 CFPOA, supra note 1, s 3.

56 Ibid, ss 4–7. These CFPOA provisions were later repealed, along with similar provisions in other federal statutes, leading to reliance on the Criminal Code provisions on possession and laundering, rather than individualized federal statutes. An Act to Amend the Criminal Code (Organized Crime and Law Enforcement) and to Make Consequential Amendments to Other Acts, SC 2001, c 32, s 58 [Act to Amend the Criminal Code].

57 CFPOA, supra note 1, s 2 defines “person” to mean a person as defined in section 2 of the Criminal Code, supra note 41, which makes clear that references to “person” include an organization and that “organization means (a) a … body corporate.” See also CFPOA: A Guide, supra note 47 at 4.

58 CFPOA: A Guide, supra note 47 at 7.

59 Debates of the Senate, 36-1, vol 137, No 100 (3 December 1998) at 2298 (Céline Hervieux-Payette).

60 Ibid.

61 Ibid at 2299 (John Lynch-Staunton).

62 Ibid at 2300–01 (Lloyd Axworthy).

63 Ibid at 2301–02.

64 Ibid at 2308 (Lloyd Axworthy), 2321 (for acceptance of the amendment, which is still in existence as s 12 of the CFPOA).

65 See further Transparency International, online: <https://www.transparency.org/>.

66 Transparency International Canada was represented by its then president, Wesley Cragg, a professor with the School of Business at York University, and Michael Davies, then vice-president, General Counsel and Secretary of General Electric Canada. Debates of the Senate, 36-1, vol 137, No 100 (3 December 1998) at 2311. Transparency International Canada was incorporated in 1996 and became a registered charity in 2009. See further Transparency International, online: <http://www.transparencycanada.ca/>.

67 Debates of the Senate, 36-1, vol 137, No 100 (3 December 1998) at 2315 (Wesley Cragg).

68 House of Commons Debates, 36-1, vol 135, No 167 (7 December 1998) at 10967 (Julian Reed).

69 Ibid.

70 Ibid at 10988.

71 Ibid at 10999.

72 Order Fixing February 14, 1999 as the Date of the Coming into Force of the Act, SI/99-13.

73 See also OECD, “OECD Convention on Combatting Bribery of Foreign Public Officials in International Business Transactions: Ratification Status as of May 2017,” online: <http://www.oecd.org/daf/anti-bribery/WGBRatificationStatus.pdf>.

74 Amendments of a consequential nature were made in 2001 concerning primarily the proceeds of crime aspects as well as the removal of a blanket immunity for police officers engaged in unlawful acts during an investigation, such as when posing as offenders. Act to Amend the Criminal Code, supra note 56.

75 FFCA, supra note 30.

76 Debates of the Senate, 41-1, vol 148, No 136 (12 February 2013) at 3247 (Janice G Johnson); Debates of the Senate, 41-1, vol 148, No 140 (27 February 2013) at 3339 (David P Smith); House of Commons Debates, 41-1, vol 146, No 272 (18 June 2013) at 18510 (Bob Dechert).

77 See the peer review process reports concerning Canada, approved and adopted by the OECD Working Group on Bribery in International Transactions, including Phase 3 Report on Implementing the OECD Anti-Bribery Convention in Canada (March 2011), online: <http://www.oecd.org/daf/anti-bribery/anti-briberyconvention/Canadaphase3reportEN.pdf> [Phase 3 Report].

78 Repeated references were made during the Act’s passage to a consultation undertaken in January 2012 with “over 30 expert stakeholders from Canadian businesses, law firms, academic institutions and non-governmental organizations.” Debates of the Senate, 41-1, vol 148, No 136 (12 February 2013) at 3248 (Janis G Johnson); Debates of the Senate, 41-1, vol 146, No 149 (26 March 2013) at 3602 (Janis G Johnson); House of Commons Debates, 41-1, vol 146, No 255 (24 May 2013) at 16964 (Bob Dechert).

79 See further the responses for Canada, prepared by Milos Barutciski, director, Transparency International Canada and Partner, Bennett Jones LLP, to Transparency International’s annual questionnaires to national expert respondents on enforcement against foreign bribery, identifying, for example, a need for nationality jurisdiction, dated 9 February 2011 and 15 March 2012, online: <http://www.transparencycanada.ca/tica-publication/oecd-convention-enforcement-progress/>. Transparency International Canada’s support for the amendments was also referenced at various times during the Act’s passage. See e.g. House of Commons Debates, 41-1, vol 146, No 272 (18 June 2013) at 18511 (Bob Dechert), 18529 (Colin Carrie), 18530 (Djaouida Sellah); see also the testimony of Janet Keeping, chair and president of Transparency International Canada and leader of the Green Party of Alberta. House of Commons, Standing Committee on Foreign Affairs and International Development (FAAE), Evidence, 41-1, No 87 (13 June 2013) at 4–5.

80 House of Commons Debates, 41-1, vol 146, No 255 (24 May 2013) at 16963 (Bob Dechert).

81 Inter-American Convention against Corruption, supra note 46 (thirty-four states parties).

82 31 October 2003, 2349 UNTS 41 (entered into force 14 December 2005, ratified by Canada 2 October 2007; 186 states parties) [UN Convention against Corruption].

83 Certain technical amendments were made to the corruption and offence-related provisions of the Criminal Code to implement the United Nations treaty. An Act to Amend the Criminal Code in Order to Implement the United Nations Convention against Corruption, SC 2007, c 13.

84 UN Convention against Corruption, supra note 82, art 15(b); Inter-American Convention against Corruption, supra note 46, art VI.

85 UN Convention against Corruption, supra note 82, art 20; see also Inter-American Convention against Corruption, supra note 46, art IX.

86 FFCA, supra note 30, s 3(1).

87 Ibid, s 4. For similar offences, but ones not specific to foreign bribery, see Criminal Code, supra note 41, s 397, as well as ss 361–63, 380, 426; see also OECD, Recommendation of the Council for Further Combating Bribery of Foreign Public Officials in International Business Transactions (26 November 2009), para X(A)(i), online: <http://www.oecd.org/daf/anti-bribery/44176910.pdf> [2009 Recomnendation].

88 FFCA, supra note 30, s 2(3); see further House of Commons Debates, 41-1, vol 146, No 262 (4 June 2013) at 17685–86 (Larry Miller).

89 The OECD Working Group on Bribery had recommended that Canada remove its “for-profit” qualification, as noted in Phase 3 Report, supra note 77 at 11–13 and as acknowledged before Parliament in House of Commons, Standing Committee on Foreign Affairs and International Development (FAAE), Evidence, 41-1, No 86 (11 June 2013) at 4 (Alan Kessel).

90 FFCA, supra note 30, s 5.

91 Ibid, s 4.

92 See Criminal Code, supra note 41, s 6(2), codifying the presumption against extraterritoriality.

93 Case of the S.S. Lotus (France v Turkey) (1927), PCIJ Ser A, No 10 at 20; see also John H Currie et al, International Law: Doctrine, Practice, and Theory, 2nd ed (Toronto: Irwin Law, 2014) at 488–91.

94 See further Currie et al, supra note 93 at 499–508.

95 See Canada: Phase 2: Report on the Application of the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions and the 1997 Recommendations on Combating Bribery in International Business Transactions (25 March 2004) at paras 75–76, online: <https://www.oecd.org/daf/anti-bribery/anti-briberyconvention/31643002.pdf> [Canada: Phase 2 Report].

96 Canada’s declaration in relation to art 42(2) of the UN Convention against Corruption, supra note 82, which is the provision concerning nationality jurisdiction, reads as follows: “Given that Canada has effective and broad territorial jurisdiction over corruption offences, Canada does not intend to extend its jurisdiction in the case of an offence committed by a Canadian national beyond that existing territorial basis of jurisdiction.”

97 Canada: Phase 2 Report, supra note 95 at para 77.

98 Karigar (2013), supra note 10 at paras 34–41.

99 [1985] 2 SCR 178 [Libman].

100 Karigar (2013), supra note 10 at para 39; Karigar (2017), supra note 10 at paras 23–33.

101 See Canada: Phase 2: Follow-up Report on the Implementation of the Phase 2 Recommendations on the Application of the Convention and the 1997 Recommendation on Combating Bribery of Foreign Public Officials in International Business Transactions (21 June 2006) at para 9, online: <http://www.oecd.org/investment/anti-bribery/anti-briberyconvention/36984779.pdf>.

102 See Bill C-31: An Act to Amend the Criminal Code, the Corruption of Foreign Public Officials Act and the Identification of Criminals Act and to Make a Consequential Amendment to Another Act, introduced in the House of Commons on 15 May 2009, clause 38.

103 Chowdhury v The Queen, 2014 ONSC 2635 [Chowdhury].

104 Leblanc, supra note 15; Seglins, supra note 15.

105 FFCA, supra note 30, s 3(2).

106 Order Fixing October 31, 2017 as the Day on which Subsection 3(2) of the Act Comes into Force, SI/2017-69; see also Global Affairs Canada, “Canada repeals facilitation payments exception in Corruption of Foreign Public Officials Act,” news release (30 October 2017), online: <https://www.canada.ca/en/global-affairs/news/2017/10/canada_repeals_facilitationpaymentsexceptionincorruptionofforeig.html>.

107 CFPOA, supra note 1, s 3(4)–(5).

108 Proceedings of the Standing Senate Committee on Foreign Affairs and International Trade, 41-1, No 22 (28 February 2013) at 22:21 (John Baird).

109 CFPOA: A Guide, supra note 47 at 8, referring to the US Foreign Corrupt Practices Act of 1977, as amended, 15 USC §§ 78 dd-1(c)(2), 78 dd-2(c)(2), 78 dd-3(c)(2).

110 See Phase 3 Report, supra note 77 at para 36. This statement does not take into account that US enforcement agencies may accord a very narrow interpretation to the exception under US law.

111 As explained by Raphael, supra note 40 at 8.02: “The law of England and Wales has never recognized ‘facilitation payments’ as a distinct category, e.g. a form of bribery worthy of being excepted from the general law of criminalizing such behaviour; the Bribery Act 2010 did not alter that situation.” The specialist prosecutorial authority responsible for investigating corruption in the United Kingdom has also issued clear guidance, making clear that “[a] facilitation payment is a type of bribe and should be seen as such.” United Kingdom, Serious Fraud Office, “Bribery Act: Guidance on Adequate Procedures, Facilitation Payments and Business Expenditure” (revised October 2012), online: <https://www.sfo.gov.uk/publications/guidance-policy-and-protocols/bribery-act-guidance/>.

112 See Commentaries on the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (21 November 1997), art 1 at para 9 [Commentaries].

113 2009 Recommendation, supra note 87, s VI.

114 Proceedings of the Standing Senate Committee on Foreign Affairs and International Trade, 41-1, No 23 (6–7 March 2013) at 23:45 (Wendell Sanford). The outliers were Australia, Canada, New Zealand, and the United States. The Anti-Bribery Convention, supra note 4, has attracted ratification from all OECD member states and several non-member states.

115 UN Convention against Corruption, supra note 82, art 30(9).

116 Phase 3 Report, supra note 77 at para 30.

117 Proceedings of the Standing Senate Committee on Foreign Affairs and International Trade, 41-1, No 23 (6–7 March 2013) at 23:8 (Michael Osborne). The speaker subsequently identified himself as a practitioner with expertise in competition law (at 23:18 and 23:24); see also House of Commons, Standing Committee on Foreign Affairs and International Development (FAAE), Evidence, 41-1, No 87 (13 June 2013) at 2 (Michael Osborne).

118 House of Commons, Standing Committee on Foreign Affairs and International Development (FAAE), Evidence, 41-1, No 87 (13 June 2013) at 1 (Noah Arshinoff).

119 Proceedings of the Standing Senate Committee on Foreign Affairs and International Trade, 41-1, No 23 (6–7 March 2013) at 23:45 (David Smith).

120 Guidelines issued by the director of public prosecutions affirm that CFPOA prosecutions may be instituted or refused on a principled basis, including public interest grounds. Public Prosecution Service of Canada Deskbook (Ottawa: Attorney General of Canada, 2014), 5.8.

121 Proceedings of the Standing Senate Committee on Foreign Affairs and International Trade, 41-1, No 23 (6–7 March 2013) at 23:9 (Michael Osborne), presumably relying upon Criminal Code, supra note 41, ss 730, 742.1; see also House of Commons, Standing Committee on Foreign Affairs and International Development (FAAE), Evidence, 41-1, No 87 (13 June 2013) at 2, 5 (Michael Osborne).

122 House of Commons, Standing Committee on Foreign Affairs and International Development (FAAE), Evidence, 41-1, No 87 (13 June 2013) at 4 (Janet Keeping).

123 As discussed in note 98 above, it was not until May 2014 that the first prison sentence was awarded in Canada for a CFPOA offence, with that prosecution proceeding under the pre-2013 Act and, thus, subject to a five-year maximum term. The Crown had sought a four-year term, while the defence had asked for a conditional sentence. Dave Seglins, “Air India Bribe Plotter Nazir Karigar Gets 3 Year Sentence,” CBC News (23 May 2013).

124 House of Commons, Standing Committee on Foreign Affairs and International Development (FAAE), Evidence, 41-1, No 86 (11 June 2013) at 3 (Alan Kessel).

125 Criminal Code, supra note 41, ss 119–20.

126 Ibid, s 121(3).

127 FFCA, supra note 30, s 6.

128 Debates of the Senate, 41-1, vol 148, No 136 (12 February 2013) at 3247 (Janice G. Johnson); Debates of the Senate, 41-1, vol 148, No 140 (27 February 2013) at 3340 (David Smith); House of Commons Debates, 41-1, vol 146, No 255 (24 May 2013) at 16964 (Bob Dechert).

129 House of Commons Debates, 41-1, vol 146, No 255 (24 May 2013) at 16964 (Bob Dechert).

130 Ibid.

131 Royal Canadian Mounted Police, “International Policing: Liaison Officers and Analysts” (31 July 2017), online: <http://www.rcmp-grc.gc.ca/en/liaison-officers-and-analysts>.

132 Jen Gerson, “Judge Approves $10.35M fine for Griffiths Energy in Chad Bribery Case,” National Post (25 January 2013); Brian Hutchinson, “Calgary Oil Company Paid $2M Bribe for Access to Oil Fields in Chad, Court Told,” National Post (28 January 2013). This case is discussed in detail in the second part of this article.

133 See e.g. House of Commons Debates, 41-1, vol 146, No 255 (24 May 2013) at 16970 (John McKay); House of Commons Debates, 41-1, vol 146, No 262 (4 June 2013) at 17684 (Dean Allison), 17696 (Don Davies).

134 SNC-Lavalin had announced on 28 February 2012 that its audit committee was investigating CDN $35 million of payments made on certain construction projects, with the audit committee reporting one month later that between 2009 and 2012, SNC-Lavalin had paid US $56 million to agents in violation of its internal policies, including its Code of Ethics and Business Conduct. The announcements led to a significant decline in the market value of SNC-Lavalin’s shares, which in turn led to the commencement of several class-action lawsuits by shareholders to recoup millions in losses. See further The Trustees of the Drywall Acoustic Lathing and Insulation Local 675 Pension Fund v SNC-Lavalin Group Inc, 2012 ONSC 5288, [2012] 112 OR (3d) 569. Media reports also covered the 2012 execution of search warrants at SNC-Lavalin’s Montreal headquarters by the RCMP, the results of which later led to a guilty plea to corruption charges in Switzerland in 2014 by SNC-Lavalin’s former head of global construction, Ben Aissa. “SNC-Lavalin Hit with $1.65 Billion Class-Action Lawsuit,” Canadian Press (9 May 2012); Graeme Hamilton and Nicolas Van Praet, “Ben Aissa Pleads Guilty to Corruption Charges,” Financial Post (1 October 2014). Fraud charges had also been made against SNC-Lavalin executives, and others, concerning a Montreal University Health Centre hospital project, following investigations by the Quebec police task force on corruption. Greg McArthur, Les Perreaux, and Colin Freeze, “Police Probe McGill Hospital Contract Awarded to SNC Lavalin,” Globe and Mail (18 September 2012); Nicolas Van Praet, “Will Montreal Megahospital Scandal Haunt SNC-Lavalin?” Financial Post (1 March 2013).

135 Greg McArthur, “Calgary-Based Oil and Gas Firm to Admit to Bribing Bangladeshi Minister,” Globe and Mail (23 June 2011); see further Niko Resources, supra note 9.

136 World Bank, “World Bank Debars SNC-Lavalin Inc. and Its Affiliates for 10 Years,” press release (17 April 2013), online: <http://www.worldbank.org/en/news/press-release/2013/04/17/world-bank-debars-snc-lavalin-inc-and-its-affiliates-for-ten-years> [World Bank, “World Bank Debars”].

137 McArthur, Greg, “CIDA Bars SNC-Lavalin from Bidding on Projects,” Globe and Mail (26 April 2013).

138 House of Commons Debates, 41-1, vol 146, No 255 (24 May 2013) at 16965 (Bob Dechert); House of Commons Debates, 41-1, vol 146, No 272 (18 June 2013) at 18509 (Bob Dechert). Note, however, that ineligibility was linked to proceedings under the CFPOA and not to sanctions imposed by the World Bank, with a SNC-Lavalin affiliate subsequently securing a Canadian government defence contract. Les Whittington and Bruce Campion-Smith, “SNC-Lavalin Subsidiary Wins Government Contract Despite World Bank Ban,” Toronto Star (13 August 2013). Past and current versions of the “Ineligibility and Suspension Policy” are online: <http://www.tpsgc-pwgsc.gc.ca/ci-if/politique-policy-eng.html>.

139 Barutciski & Bandali, supra note 6 at 253, referring to a government backgrounder that is no longer available. Export Development Canada (EDC) also has policies in place to refuse to provide support where there is credible evidence that bribery was involved in a transaction. See further “EDC’s Anti-Corruption Policy Guidelines” (undated), online: <http://www.edc.ca/EN/About-Us/Corporate-Social-Responsibility/Documents/anti-corruption-guidelines.pdf>.

140 Proceedings of the Standing Senate Committee on Foreign Affairs and International Trade, 41-1, No 22 (28 February 2013) at 22:30 (John Baird); see also 22:27 (Daniel Lang).

141 House of Commons Debates, 41-1, vol 146, No 255 (24 May 2013) at 16964 (Bob Dechert).

142 Karigar (2013), supra note 10.

143 On the OECD’s assessment of Canada as a state with “little or no enforcement,” see Julian Sher, “OECD Slams Canada’s Lack of Prosecution of Bribery Offences,” Globe and Mail (28 March 2011). On Transparency International’s subsequent ranking of Canada as the worst within the G7, see Julian Sher, “Canada Ranked Worst of G7 Nations in Fighting Bribery, Corruption,” Globe and Mail (24 May 2011); see also Julian Sher, “Canada Loses Ground on Bribery Ranking,” Globe and Mail (1 November 2011).

144 Proceedings of the Standing Senate Committee on Foreign Affairs and International Trade, 41-1, No 23 (6–7 March 2013) at 23:43 (Wendell Sanford, Director, Criminal, Security and Diplomatic Law Division, Department of Foreign Affairs and International Trade).

145 House of Commons Debates, 41-1, vol 146, No 255 (24 May 2013) at 16971 (John McKay).

146 ESTMA, supra note 31; see further Natural Resources Canada, “Extractive Sector Transparency Measures Act (ESTMA)” (5 October 2018), online: <http://www.nrcan.gc.ca/mining-materials/estma/18180>.

147 See Bill C-43, A Second Act to Implement Certain Provisions of the Budget Tabled in Parliament on February 11, 2014 and Other Measures, introduced by the Minister of Finance on 23 October 2014.

148 G8 Lough Erne Summit, Leaders Communiqué (18 June 2013) at paras 34-42, especially para 35, but also paras 30–31, online: <http://www.g8.utoronto.ca/summit/2013lougherne/lough-erne-communique.html>.

149 Directive 2013/50/EU amending Directive 2004/109/EC, OJ L294, 13 (22 October 2013); Directive 2013/34/EU amending Directive 2006/43/EC, OJ L182, 19 (26 June 2013).

150 See further Extractive Industries Transparency Initiative, online: <https://eiti.org/>. See also Rose, supra note 7, ch 4.

151 G8 Sea Island Summit, “Fighting Corruption and Improving Transparency” (10 June 2004), online: <http://www.g8.utoronto.ca/summit/2004seaisland/corruption.html>.

152 Extractive Industries Transparency Initiative, “Factsheet” (May 2017), online: <https://eiti.org/sites/default/files/documents/eiti_factsheet_en.pdf>.

153 CFPOA, supra note 1, s 2; Anti-Bribery Convention, supra note 4, art 1(4).

154 Anti-Bribery Convention, supra note 4, art 5.

155 See generally Linda S Frey & Marsha L Frey, The History of Diplomatic Immunity (Columbus: Ohio State University Press, 1999); see also Sir Ivor Roberts, ed, Satow’s Diplomatic Practice, 6th ed (Oxford: Oxford University Press, 2009) at 97–101, 121–41.

156 See generally C Wilfred Jenks, International Immunities (London: Stevens & Sons, 1961); Philippe Sands & Pierre Klein, eds, Bowett’s Law of International Institutions, 6th ed (London: Sweet & Maxwell, 2009), especially 15-033–15-064, 15-073–15-084; Jan Klabbers, Introduction to International Institutional Law, 2nd ed (Cambridge, UK: Cambridge University Press, 2009) at 131–52; Niels Blokker & Nico Schrijver, eds, Immunity of International Organizations (Leiden: Brill Nijhoff, 2015); see also August Reinisch, ed, The Conventions on the Privileges and Immunities of the United Nations and Its Specialized Agencies: A Commentary (Oxford: Oxford University Press, 2016).

157 SC 1991, c 41, ss 3, 12, with regulations made under the Act identifying the specific international organizations that have privileges and immunities under Canadian law. Specific legislation can also be enacted, following the model established by the Privileges and Immunities (United Nations) Act, SC 1947, c 69, which gave Canadian legal effect to the Convention on the Privileges and Immunities of the United Nations, 13 February 1946, 1 UNTS 15, Can TS 1948 No 2 (entered into force 17 September 1946); see further Philip M Saunders, “Canada” in August Reinisch, ed, The Privileges and Immunities of International Organizations in Domestic Courts (Oxford: Oxford University Press, 2013) at 75–101.

158 See generally Eileen Denza, Diplomatic Law: Commentary on the Vienna Convention on Diplomatic Relations, 4th ed (Oxford: Oxford University Press, 2016) at 232–59.

159 Ibid at 264–65.

160 Ibid at 260–63.

161 Ibid at 319–27.

162 Ibid at 111–48.

163 Ibid at 156–68.

164 Carrie Tait & Kelly Cryderman, “The Canadian Energy Executive at the Centre of the Griffiths Corruption Scandal,” Globe and Mail (24 January 2013).

165 R v Griffiths Energy International Inc, Agreed Statement of Facts (14 January 2013) at para 39 (Alta QB) [copy on file with the author] [Griffiths Energy, Agreed Statement of Facts]. The facts are also set out in detail in Serious Fraud Office v Saleh, [2015] EWHC 2119 (QB) at paras 11–23 [Saleh (2015)]; Saleh (2017), supra note 34 at paras 6–21; Serious Fraud Office v Saleh, [2018] EWHC 1012 (QB) at paras 14–51.

166 Griffiths Energy, Agreed Statement of Facts, supra note 165 at para 20.

167 Ibid at paras 21–22.

168 Ibid at paras 23–26. The shares to the third person were later transferred to the ambassador’s wife.

169 Ibid at paras 36, 38.

170 Ibid at paras 41–45.

171 Ibid at para 49.

172 Ibid at para 52.

173 Griffiths Energy, supra note 9, reported to the public in Gerson, supra note 132; Lauren Krugel, “Judge Approves $10.35-million Fine for Griffiths Energy in Bribery Case,” Canadian Press (25 January 2013), online: <http://globalnews.ca/news/383889/judge-approves-10-35-million-fine-for-griffiths-energy-in-bribery-case-2/>.

174 Reported in Gerson, supra note 132; Krugel, supra note 173.

175 The judge was alive to this point, as he indicated in statements made at the sentencing hearing, and which has since been noted in Saleh (all cases), supra note 165 at para 27.

176 Founded by the billionaire commodities broker Marc Rich in 1974, Glencore is ranked in the top echelon of Fortune magazine’s Global 500 list of the world’s largest companies. Glencore merged with Xstrata in 2013.

177 Dan Healing, “Former Griffiths Energy Joins Transparency Initiative,” Calgary Herald (29 August 2013).

178 Ibid.

179 Ashley Armstrong, “Glencore Gatecrashes Caracal Energy Deal with Rival £807m Cash Offer,” The Telegraph (14 April 2014); Alexis Flynn, “Glencore Xstrata Buys Caracal Energy,” Wall Street Journal (14 April 2014). A press release issued by the two companies announced the completion of the acquisition on 8 July 2014.

180 Neil Hume & Xan Rice, “Glencore Xstrata Buys Chad-Focussed Oil and Gas Group Caracal,” Financial Times (14 April 2014).

181 Ibid.

182 On the last day of Parliament’s 2013 deliberations, at Third Reading in the House of Commons, the minister’s parliamentary secretary made a brief reference to a presentation by Canadian legal experts from the Department of Foreign Affairs to the 2011 Conference of the States Parties to the UN Convention against Corruption on legal mechanisms for freezing the assets of corrupt foreign officials and for combatting bribery. House of Commons Debates, 41-1, vol 146, No 272 (18 June 2013) at 18509 (Bob Dechert). This phrasing, however, suggests reference to the then recent enactment of a Canadian law permitting the freezing of assets believed to have been misappropriated by officials from foreign states in times of internal turmoil, notably without the underpinning of a criminal charge, rather than a focus on the forfeiture of the ill-gotten gains of bribery linked to Canada. See further Freezing Assets of Corrupt Foreign Officials Act, SC 2011, c 10.

183 Anti-Bribery Convention, supra note 4, art 3(3).

184 According to the Commentaries, supra note 112 at para 21, adopted by the negotiating conference: “The ‘proceeds’ of bribery are the profits or other benefits derived by the briber from the transaction or other improper advantage obtained or retained through bribery.”

185 UN Convention against Corruption, supra note 82, art 2(e).

186 Ibid, art 51.

187 Act to Amend the Criminal Code, supra note 56.

188 Criminal Code, supra note 41, ss 354, 462.31.

189 Ibid, ss 462.3, 462.32–462.5.

190 Mutual Legal Assistance in Criminal Matters Act, RSC 1985, c 30 (4th Supp), ss 9.3, 9.4.

191 Seized Property Management Act, SC 1993, c 37, s 11.

192 See e.g. Tait & Cryderman, supra note 164.

193 Saleh (2015), supra note 165 at para 24.

194 Saleh (2017), supra note 34 at para 22.

195 The details of the events can be found in the judgments of the English courts in Saleh (2015), supra note 165 at paras 29–36; Saleh (2017), supra note 34 at paras 22–32.

196 In the interests of full disclosure, the author provided assistance on matters of international law to Saleh’s counsel in relation to the proceedings in Canada.

197 This information is recorded in Saleh (2015), supra note 165 at para 112.

198 Ibid at para 113.

199 On the arguments and findings of mistakes in the order, see further Saleh (2015), supra note 165 at paras 37–52; Saleh (2017), supra note 34 at paras 35–39.

200 Saleh (2015), supra note 165 at para 53.

201 Ibid at paras 53–54.

202 Ibid at para 55.

203 Saleh (2017), supra note 34 at para 2.

204 Ibid at para 54.

205 See Serious Fraud Office v Saleh, [2018] EWHC 1012 (QB).

206 US Department of Justice, “Department of Justice Seeks Forfeiture of $34 Million in Bribe Payments to the Republic of Chad’s Former Ambassador to the U.S. and Canada,” Press Release No 15-824 (30 June 2015); see also the “Verified Complaint for Forfeiture In Rem” filed in the US District Court for the District of Columbia on 30 June 2015, online: <https://www.justice.gov/opa/file/624266/download>.

207 United States, Department of Justice, “Department of Justice Seeks Recovery of Approximately $100,000 in Bribes Paid to Former Chad Ambassador,” Press Release No 14-1240 (7 November 2014); see also the “Verified Complaint for Forfeiture In Rem” filed in the U.S. District Court for the District of Columbia on 7 August 2014, online: <https://www.justice.gov/sites/default/files/opa/press-releases/attachments/2014/11/07/bechir_complaint.pdf>.

208 “United States’ Motion to Vacate Sealing Order,” filed in the US District Court for the District of Columbia on 30 October 2014, online: <https://www.justice.gov/sites/default/files/opa/press-releases/attachments/2014/11/07/bechir_motion_to_vacate.pdf>.

209 Leslie Wayne, “Wanted by U.S.: The Stolen Millions of Despots and Crooked Elites,” New York Times (16 February 2016). By 2016, twenty-five cases had been brought against twenty foreign officials under this initiative.

210 US Department of Justice, supra note 206.

211 Larissa Gray et al, Few and Far: The Hard Facts on Stolen Asset Recovery (Washington, DC: World Bank and OECD, 2014) at 21; see also Leslie Wayne, “Shielding Seized Assets from Corruption’s Clutches,” New York Times (30 December 2016).

212 See further Annalisa M Liebold, “Aligning Incentives for Development: The World Bank and the Chad-Cameron Oil Pipeline” (2011) 36 Yale J Intl L 136.

213 Geoffrey York, “Africa’s Autocrats Find New Ways to Cling to Power,” Globe and Mail (22 July 2017) at F3.

214 SC 2017, c 21.

215 See further Global Affairs Canada, “Justice for Victims of Corrupt Foreign Officials Act” (29 November 2018), online: <https://www.international.gc.ca/world-monde/international_relations-relations_internationales/sanctions/victims_corrupt-victimes_corrompus.aspx?lang=eng>.

216 Proceedings of the Standing Senate Committee on Foreign Affairs and International Trade, 41-1, No 22 (28 February 2013) at 22:27 (John Baird).

217 See e.g. David Kennedy, “The International Anti-Corruption Campaign” (1999) 14 Conn J Intl L 455 at 459: “[W]hatever one’s theory of development … it seems indisputable that there would be more development if local corruption could be eliminated.”

218 Wallace, supra note 36 at para 1, cited in Karigar (2017), supra note 10 at para 39.

219 R v Serré, 2013 ONSC 1732, 105 WCB (2d) 769 at para 29, cited with approval in Karigar (2014), supra note 10 at para 34.

220 Karigar (2014), supra note 10 at para 24, relying on R v Bogart, [2002] 61 OR (3d) 75, leave to appeal refused, [2002] SCCA 398 at para 23.

221 R v Stucky, 2009 ONCA 151 at para 27, relying on Libman, supra note 99.

222 As obliged by section 737 of the Criminal Code, supra note 41, with amendments having since increased the rate of the victim surcharge from 15 percent to 30 percent. An Act to Amend the Criminal Code, SC 2013, c 11, s 3(2).

223 An Act to Amend the Criminal Code (Victims of Crime), SC 1988, c 30.

224 Section 747(7) of the Criminal Code, supra note 41, confirms that a victim surcharge “shall be applied for the purposes of providing such assistance to victims of offences as the lieutenant governor in council of the province in which the surcharge is imposed may direct from time to time.”

225 Niko Resources, supra note 9 at para 21; Griffiths Energy, supra note 9 at paras 10, 28.

226 Wallace, supra note 36 at para 3.

227 The findings of the panel’s review were later leaked to the media. Greg McArthur, “SNC-Lavalin in Bangladesh: World Bank Sees ‘Conspiracy,’” Globe and Mail (22 February 2013); see also “Full Text of WB Panel’s Letter to ACC” [Anti-Corruption Commission], The Daily Star (Bangladesh) (15 January 2013), online: <http://www.thedailystar.net/news-detail-265294>.

228 The debarment was “part of a Negotiated Resolution Agreement between the World Bank and SNC-Lavalin Group following a World Bank investigation into allegations of bribery schemes, involving SNC-Lavalin Inc. and officials in Bangladesh.” World Bank, “World Bank Debars,” supra note 136.

229 Wallace, supra note 36 at para 22.

230 As noted above, the prosecution of a fifth individual, being a senior Bangladeshi official, was later stayed for want of jurisdiction. Chowdhury, supra note 103.

231 Wallace v R, 2014 ONSC 7449.

232 See further Wallace, supra note 36 at paras 75–80.

233 Articles of Agreement of the International Bank for Reconstruction and Development, 27 December 1945, Can TS 1944 No 37 (entered into force 27 December 1945); Articles of Agreement of the International Development Association, 26 January 1960, Can TS 1960 No 8 (entered into force 24 September 1960).

234 RSC 1985, c B-7.

235 Wallace, supra note 36 at para 46.

236 Ibid at para 67.

237 Ibid at para 82.

238 Ibid at para 94.

239 Ibid at para 1.

240 Gerald Chan & Nader Hasan, “No to Corruption Abroad, but Yes to Ensuring Fair Trial,” Globe and Mail (19 May 2016). The authors represented the intervener, the BC Civil Liberties Association, in World Bank Group v Wallace.

241 See World Bank Group v Wallace, SCC File No 36315, Factum of the Interveners, European Bank for Reconstruction and Development, Organization for Economic Co-Operation and Development, African Development Bank Group, Asian Development Bank, Inter-American Development Bank, and Nordic Investment Bank, at paras 34–38.

242 Annual Update: Integrity Vice Presidency (INT): Fiscal Year 2016 (Washington, DC: World Bank Group, 2017) at 12.

243 Stephen Zimmerman & Giuliana Dunham-Irving, “Canada Supreme Court Rules in Support of World Bank, Strengthens Global Anti-Corruption Fight,” FCPA Blog (5 May 2016), online: <http://www.fcpablog.com/blog/2016/5/5/canada-supreme-court-rules-in-support-of-world-bank-strength.html>.

244 Annual Update, supra note 242 at 12.

245 An argument for balance that also arises within the context of extradition proceedings. See Joanna Harrington, “The Role for Human Rights Obligations in Canadian Extradition Law” (2005) 43 Can YB Intl L 45.

246 Wallace, supra note 36 at para 145.

247 Jacques Gallant, “Judge Acquits SNC-Lavalin Execs, Says RCMP Relied on ‘Gossip,’” TheStar.com (10 February 2017); Janet McFarland, “Former SNC Executives, Businessman Acquitted in Corruption Case,” Globe and Mail (10 February 2017).

248 R v Wallace, 2017 ONSC 132 at para 71.

249 “All Padma Bridge Graft Accused Acquitted,” The Daily Star (Bangladesh) (26 October 2014), online: <http://www.thedailystar.net/all-padma-bridge-graft-accused-acquitted-47466>.

250 Annual Update, supra note 242 at 12.

251 World Bank, “World Bank Statement on Padma Bridge,” press release (29 June 2012), online: <http://www.worldbank.org/en/news/press-release/2012/06/29/world-bank-statement-padma-bridge>.

252 World Bank, “World Bank Debars,” supra note 136.

253 “World Bank Cancels Bangladesh Bridge Loan over Corruption,” BBC News (30 June 2012); “Bangladesh Weighs Options after World Bank Pulls Out of Padma Bridge Project,” The Guardian (17 July 2012). On the categorization of “least developed country,” see further UN Department of Economic and Social Affairs (undated), online: <https://www.un.org/development/desa/dpad/least-developed-country-category.html>.

254 See note 78 above.

255 It was recently announced that Canadian finance ministers would take measures to improve the transparency of beneficial ownership information. Department of Finance, “Finance Ministers Reach Agreement on Behalf of All Canadians,” press release (11 December 2017), online: <https://www.fin.gc.ca/n17/17-122-eng.asp>.

256 From September to December 2017, the government of Canada carried out a public consultation on the role for deferred prosecution agreements to address corporate wrongdoing. See further Expanding Canada’s Toolkit to Address Corporate Wrongdoing: Discussion Paper for Public Consultation: Deferred Prosecution Agreement Stream (Ottawa: Government of Canada, 2017); see also Another Arrow in the Quiver? Consideration of a Deferred Prosecution Agreement Scheme in Canada (Transparency International Canada, July 2017). The feedback received was largely positive, as noted in a government of Canada update published in February 2018, and, in March 2018, amendments to the Criminal Code were tucked within a budget bill to enable prosecutors to negotiate remediation agreements in respect of certain offences. Budget Implementation Act, 2018, No 1, SC 2018, c 12, s 404, adding a new “Part XXII.1” to the Criminal Code on “Remediation Agreements.”

257 Criminal Code, supra note 41, ss 715.3 (“Definitions”), 715.31 (“Purpose”), 715.36 (“Duty to Inform Victims”) and 715.37(5): “[T]he victim surcharge … is payable to the treasurer of the province.”

258 “RCMP Joins International Task Force against Foreign Bribery,” CBC News (22 June 2013); see also Australian Federal Police, “Global Effort to Tackle Foreign Bribery and Corruption Strengthened by International Taskforce Partnerships,” media release (12 May 2017), online: <https://www.afp.gov.au/news-media/media-releases/global-effort-tackle-foreign-bribery-and-corruption-strengthened>.

259 See further Stolen Asset Recovery Initiative, online: <http://star.worldbank.org/star/>.

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Canadian Yearbook of International Law/Annuaire canadien de droit international
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