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What Should The Denominator Be?

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Recently, the OECD Working Group on Bribery released this Phase 4 report on Canada’s implementation of the OECD Anti-Bribery Convention. The Phase 4 report “looks at the evaluated country’s particular challenges and positive achievements [and] also explores issues such as detection, enforcement, corporate liability and international cooperation, as well as covering unresolved issues from prior reports.”

The report of course is not written by computers, but real human beings and in the case of Canada’s Phase 4 report the lead examiners were prosecutors and ministry of justice officials from Austria and New Zealand. For starters, should Canada really care what prosecutors and justice officials from Austria and New Zealand have to say about Canadian law enforcement?

In any event, like most other OECD Working Group on Bribery country reports, Canada is criticized how not bringing more enforcement actions.

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Guidance From Canada’s First Remediation / Deferred Prosecution Agreement for Foreign Corruption

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A guest post from McCarthy Tetrault LLP attorneys Andrew Matheson, John Boscariol, Robin McKechney, and Adam Dobkin.

The recent Court-approved Remediation Agreement (“RA”), between the Public Prosecution Service of Canada (“PPSC”) and Ultra Electronics Forensic Technology Inc. (“UEFTI”), provides important guidance on procedural and substantive issues for future cases. The agreement (“UEFTI Agreement”) arises from charges against UEFTI for bribing Philippine officials to secure government contracts. This case should be reviewed carefully by any organization considering the potential negotiation of an RA to avoid criminal conviction in any settlement of allegations or charges relating to foreign or domestic corruption, fraud, insider trading, money laundering or other offences within scope of this RA mechanism.[1]

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Up North

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The Corruption of Foreign Public Officials Act (CFPOA) is Canada’s version of the Foreign Corrupt Practices Act.

This previous post highlighted how a customer of Ultra Electronic Foreign Technology (UEFTI – a company that provides technology and solutions that help law enforcement and border security agencies around the world prevent and solve crime) charged UEFTI with CFPOA offenses.

The customer was Canada’s Royal Canadian Mounted Police (RCMP).

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An Informative Read

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This prior post highlighted the recent acquittal of Damodar Arapakota (founder and former chief executive of Toronto-based Imex Systems) by a Canadian judge of a charge of bribery of a foreign public official under Canada’s Corruption of Foreign Public Officials Act (CFPOA)

The actual decision by the Canadian judge (see here) makes for an interesting read in that the CFPOA (while not a carbon copy of the FCPA) does contain many of the same general elements.

While touching upon other CFPOA elements such as mens rea and the meaning of advantage or benefit under the CFPOA, the main reasons the judge found Arapakota not guilty was due to the lack of nexus between the advantage or benefit (travel expenses) given to the foreign official and the discretionary act performed by the foreign official as well as the judge’s conclusion that the discretionary act performed by the foreign official did not satisfy the CFPOA’s “obtain or retain an advantage in business” element.

The logic, reasoning and rationale of the decision are all FCPA relevant.

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Potpourri

Potpourri

Restitution

As highlighted in this prior post, in connection with the May 2022 Glencore FCPA enforcement action, the majority owners of Crusader Health (Ian and Laureth Hagen) petitioned the court in the underlying enforcement action to file a restitution claim under the Mandatory Victims Restitution Act (MVRA) and the Crime Victims Act on the basis that the entity was a victim of Glencore’s conduct in the Democratic Republic of Congo. The court granted the petition.

As highlighted in this prior post, Glencore acknowledged “that Crusader—and by extension, the Hagens—was harmed by the offense to which Glencore has pled guilty, and it is prepared to pay restitution in the amount of any loss directly and proximately caused by that offense.” However, Glencore disputed the amount of restitution properly owed.

Recently, the court awarded Crusader restitution of approximately $29.7 million (an amount less than the approximate $48.4 – $50.3 million Crusader sought). See U.S. v. Glencore International 2023 WL 2242469.

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