Revisiting Canada’s Commitment to the Fight Against Global Corruption and the Need for Nationality Jurisdiction Under the Corruption of Foreign Public Officials Act

Abstract:     
Since 1999, Canada has been both a party to the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions and had in place domestic legislation to criminalize bribing a foreign public official. Canadian officials have consistently stated that Canada is committed to fighting global corruption and its international obligation to take necessary measures to establish liability for the bribery of foreign public officials.

However, unlike all other countries that have ratified the Convention, Canada has taken the position that its anti-bribery legislation and enforcement is limited to instances where a significant part of the offence is committed in whole or in part in Canada, rather than where its nationals commit corruption offences abroad.

This article argues that there is sufficient evidence to undermine Canada’s rationale for limiting jurisdiction and sound policy reasons to revisit it. Since 2005, Canada has been the only G7 country in the little or no enforcement category and the only party to the Convention that does not provide for nationality jurisdiction. Additionally, several recent reports from international monitoring groups and comments from Canadian enforcement officials seriously question the effectiveness of Canada’s approach to jurisdiction and its ability to handle the number of investigations currently under way. It is time that Parliament re-introduce legislation to expand jurisdiction under the CFPOA.

Part I outlines the putative jurisdiction of the CFPOA. Part II applies that test to the facts surrounding the highest-profile CFPOA prosecution in Niko Industries Ltd and questions whether Canada actually had territorial jurisdiction. Part III moves beyond the question of territorial jurisdiction to examine Canada’s international obligations under the Convention and the need for extra-territorial jurisdiction to cover corruption offences committed by Canadians abroad. The final part of this article discusses how giving the CFPOA territorial and nationality jurisdiction is in line with all the member states actively fighting global corruption, and examines how the United States and United Kingdom have been effective in exercising nationality jurisdiction.

Number of Pages in PDF File: 27

Keywords: OECD, Combating Bribery, Canada, Corruption of Foreign Public Officials Act, Nationality Jurisdiction, Extra-territorial, Niko Resources Ltd, United States, United Kingdom

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