Law Times

Law Times • may 7, 2018 Page 11 www.lawtimesnews.com Sentence given under anti-corruption statute upheld BY SHANNON KARI For Law Times W hen Donald Trump was in- creasing his busi- ness interests out- side of North America and in countries such as India, he made regular appearances on CNBC, the cable business news chan- nel. Asked in 2012 about the Foreign Corrupt Practices Act, which was first enacted in 1977 and prohibits bribes of foreign officials, Trump said it put U.S. businesses at a disadvantage when bidding for contracts. "It is a horrible law. To think that we prosecute these people for bringing business . . . it is ri- diculous. Every other country is doing it," Trump fumed. "If the country where a bribe occurred wanted to prosecute, that would be fair," he explained. "For the U.S. to prosecute is out- rageous." A year after that television appearance, the federal govern- ment of Canada amended and toughened its Corruption of Foreign Public Officials Act — in part to keep pace with other countries and not just the U.S., which, contrary to Trump's claim, was not unique in having such legislation. Last fall, the federal govern- ment removed the facilitation of so-called "grease payments" exceptions to the CFPOA so that even small amounts given to officials in foreign countries to speed up activities such as pro- cessing permits are prohibited by the statute. Earlier this year, the Supreme Court of Canada denied leave in R. v. Karigar after the On- tario Court of Appeal upheld a three-year sentence in the first conviction of an individual in this country under the anti- corruption statute. Donald Trump is U.S. presi- dent now, but that does not mean there is any move in that country or globally to reduce enforcement efforts in the area of bribes paid to foreign officials, says Peter Mantas, a partner at Fasken Martineau DuMoulin LLP in Ottawa. "Since he became president, Trump has actually signed into law a watering down of report- ing requirements for extractive services, such as mining," he notes. "The reality is though that the U.S. Justice department contin- ues to be vigorous in its enforce- ment efforts, arguably more so than Canada," says Mantas, who is co-leader of the firm's white collar and defence and investiga- tions group and its procurement group. Canadian companies with any business connection to the U.S. should be careful, suggests Mantas. "I don't think there they will find they are immune from U.S. prosecutions. "As well, the United Kingdom has ramped up its prosecutions. Even China is starting to clamp down on corruption," he says. The Court of Appeal decision in Karigar also provided a broad interpretation of the bribery offence in the anti-corruption statute, says Sabrina Bandali, a lawyer at Bennett Jones LLP in Toronto. The Karigar case involved payments facilitated by an em- ployee of the Canadian subsid- iary of a U.S. company to try to win a multi-million-dollar soft- ware contract with Air India. The Court of Appeal rejected arguments by Karigar's lawyers that to obtain a conviction re- quires proof of an agreement between the accused and the foreign public official and not just an agreement between one or more other persons to offer a bribe to the official. "There is no limiting lan- guage on who must 'agree', pre- scribing the parties to the agree- ment," wrote Justice Kathryn Feldman for the unanimous three-judge panel. "It does not say that the agree- ment must be with the foreign official, only that the loan, re- ward, advantage or benefit that is the subject of the agreement must be a loan, reward, advan- tage or benefit to (or for the benefit of ) a public official," she wrote. "To read in such a limitation would constrain the ability of FOCUS JOIN US FOR THE Powered by FULL DAY IN-CLASS & LIVE ONLINE ACCESS This annual conference gives executives and Corporate Commercial & Technology lawyers an opportunity to network and learn about the most recent and significant developments in Canadian and international Technology Law - all provided by leading practitioners. To inquire about registrations and group rates contact us at 416-609-5868 | Toll Free: 1-877-298-5868 Email: cpd.centre@thomsonreuters.com Please mention Tech Law Conference in the subject line. 2018 TECHNOLOGY LAW SPRING FORUM MAY 28-29, 2018 CHAIRED BY Donald B. Johnston, Aird & Berlis LLP Natasha Ell Saunders, Vice President, Legal Affairs, TekSavvy Solutions Inc. Vantage Venues 150 King Street West, 16th Floor, Toronto ON, M5H 1J9 REGISTER NOW WWW.TECHLAW-CONFERENCE.CA Untitled-4 1 2018-05-01 2:09 PM See Risk, page 12 Peter Mantas says there is not a move in the U.S. or globally to reduce enforcement efforts in the area of bribes paid to foreign officials. Corruption of Foreign Public Officials Act As of Oct. 31, 2017, nominal amounts of facilitation payments are no longer excluded from the provisions of the CFPOA. Ex- amples where facilitation payments were previously permitted include: • The issuance of a permit, licence or other document to qualify a person to do business; • The processing of official documents, such as visas and work permits; • Services normally offered to the public, such as mail pick-up and delivery, telecommunication services and power and wa- ter supply; and • Services normally provided as required, such as police pro- tection, loading and unloading of cargo, the protection of products from deterioration or the scheduling of inspections related to contract performance or the transit of goods. — Shannon Kari

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