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.
Specifically the report states: “enforcement of the foreign bribery offence [in Canada] remains exceedingly low” and “the lead examiners are seriously concerned that … Canada’s enforcement of the foreign bribery offence remains low …”.
The question arises: enforcement compared to what?
If we think of law enforcement through the lens of numerator (enforcement actions) compared to denominator (conduct that violates a specific statute for which there could be an enforcement action), missing from Canada’s Phase 4 (like all others) is any discussion of what the denominator is should be?
For instance, the report states that from “2018 until the end of 2022, the Royal Canadian Mounted Police (RCMP) reports that it has opened 31 new CFPOA [Corruption of Foreign Public Officials Act] investigations (on average 6 per year).”
The OECD does not believe that this is enough, but how many should there be?
What should the denominator be?
The occurrence of many events in a country is generally tied to the population of a country.
Does the OECD expect that Canada (population 38 million) will have as many enforcement actions as France (population 68 million), as Brazil (214 million), as the United States (population 332 million)?
Another significant reason to take OECD country reports with a grain of salt is that the OECD simply does not like judicial scrutiny of prosecutor interpretations of law.
For instance, the OECD states “the recent pattern of restrictive [Canadian] court interpretation of the CFPOA is also a source of concern calling for action” and that “the decisions issued by courts so far on elements of the foreign bribery offence and standard of proof required seem unduly high.”
Apparently the OECD wants expansive interpretations of bribery laws with lower standards of proof because this will presumably satisfy its appetite for more enforcement actions.
