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Civil Enforcement of Canada’s Foreign Corruption Law?

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A guest post by Graeme Hamilton and Omar Madhany (both with Borden Ladner Gervais LLP in Toronto).

Perhaps the starkest difference between the Foreign Corrupt Practices Act and Canada’s foreign corruption law—the Corruption of Foreign Public Officials Act (CFPOA)—is the fact that the CFPOA may only be enforced criminally.  As a result, enforcement authorities in Canada are held to the higher criminal standard of proof beyond a reasonable doubt when negotiating with a company to resolve a CFPOA investigation or contemplating whether to bring CFPOA charges.

The lack of a civil enforcement mechanism for the CFPOA is often cited as one of the main reasons for the disparity between the volume of foreign corruption enforcement activity in the U.S. and Canada.  A recent settlement announced by the Ontario Securities Commission (OSC) with Katanga Mining Ltd. (Katanga), however, may signal the beginning of a shift in this landscape by establishing a role for Canada’s securities regulators in tackling foreign corruption from a civil context.

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Friday Roundup

Roundup

Consistently damaged, across the pond, scrutiny alerts and updates, and for the reading stack. It’s all here in the Friday roundup.

“Consistently Damaged”

In this 12 minute video, Neil Bruce (CEO and President of SNC-Lavalin) describes his frustration for how the company is not being offered a remediation agreement (Canada’s term for a deferred prosecution agreement) in connection with its long-standing scrutiny. (See here and here for prior posts).

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SNC-Lavalin Continues To Pout

Child Crying

But Mom / Dad, when Johnny gets into trouble his parents do things a little bit differently, why can’t I benefit from that?

That was my reaction in this February 2015 post when SNC-Lavalin was criminally charged by Canadian authorities for alleged improper payments to Libyan officials. Upon being charged, the company issued this release stating:

“It is important to note that companies in other jurisdictions, such as the United States and United Kingdom, benefit from a different approach that has been effectively used in the public interest to resolve similar matters while balancing accountability and securing the employment, economic and other benefits of businesses.”

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Canada Now Has Deferred Prosecution Agreements

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A guest post today from Toronto-based Borden Ladner Gervais attorneys Milos Barutciski, Graeme Hamilton and Julia Webster.

On September 19, 2018, deferred prosecution agreements (DPAs) became available to resolve corporate offences in Canada under the Criminal Code and the Corruption of Foreign Public Officials Act.

Remediation Agreements will be available to resolve criminal charges against corporations, partnerships and other forms of business organizations without registering a criminal conviction. Remediation Agreements will be negotiated by the prosecution and the accused and are subject to judicial approval. They will typically be accompanied by the payment of penalties, restitution, implementation of compliance measures, and other terms and conditions as negotiated by the parties, including the potential appointment of corporate monitorships.

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Friday Roundup

Roundup

A home run, quotable, monitors, up north, scrutiny alerts and updates, irksome, and for the reading stack. It’s all here in the Friday roundup.

Home Run

The latest issue of the always informative FCPA Update from Debevoise & Plimpton (released by the way on the opening day of the Major League Baseball season) hits a home run.

The lead article by Paul Berger (former Associate Director of the SEC’s Enforcement Division) concerns the recent Elbit Imaging enforcement action (see here for the prior post) and states in pertinent part:

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