Authors: Derek Hoffman and Jocelyn Sirois
Anti-corruption laws in Canada and elsewhere generally prohibit giving, or offering to give, a reward, advantage or benefit to a public official as consideration for such public official to do, omit to do, or to influence acts or decisions of the public authority of which such public official is a representative.
Understanding the definition of “public official” and which individuals may fall within that definition is an extremely important factor to help organizations craft effective anti-corruption compliance policies, and to determine whether an action or a proposed action has or will contravene applicable anti-corruption laws.
In evaluating whether various categories of individuals fall under the definition of “public official” one must also give consideration as to whether leaders of Aboriginal governments are considered “public officials.” The Canadian government has signed more than 20 agreements recognizing Aboriginal governments within Canada, and has enacted legislation which seeks disclosure of payments by oil, gas and mining companies to Aboriginal governments in the same manner as the disclosure of payments made to other prescribed levels of government.
Such events suggest that representatives of Aboriginal governments may fall under the definition of public official for the purpose of Canadian anti-corruption legislation.
This post seeks to outline and compare the definition of “public official” in the anti-corruption legislation of Canada, the United States and the United Kingdom, including an analysis of whether leaders of Aboriginal governments would be captured by those definitions.
Analysis – Canadian Context
Three major pieces of legislation concerning anti-corruption in Canada are the Corruption of Foreign Public Officials Act, SC 1998, c 34 (the “CFPOA”), the Criminal Code of Canada, and the Extractive Sector Transparency Measures Act, SC 2014, c 39 (“ESTMA”).
The CFPOA prohibits individuals or companies from bribing a “foreign public official,” which is defined as a person who holds a legislative, administrative or judicial position of a foreign state; a person who performs public duties or functions for a foreign state; or an official or agent of a public international organization that is formed by two or more states, governments or public international organizations.
“Foreign state” is defined to include only governments and agencies of countries other than Canada, or political subdivisions of such countries such as states/provinces or other levels of government subdivision for such countries.
The corruption provisions of the Criminal Code of Canada prohibit bribery of judicial, law enforcement and other government officials. The Criminal Code defines “officials” as persons including those who are appointed or elected to discharge a public duty, or persons who hold a position under government or a public department. “Government” in the Criminal Code is defined as the Government of Canada, the government of a province, or Her Majesty in right of Canada or a province.
ESTMA requires oil, gas and mining organizations to report certain prescribed payments made to “payees,” which includes persons that would be categorized as public officials under the CFPOA and the Criminal Code, in relation to the commercial development of oil, gas or minerals. “Payee” is defined as including any government within or outside Canada; a body established by two or more governments; any trust, corporation or other authority established to exercise a power, duty or function of government; and any other prescribed payee. While ESTMA does not carry the risk of prison for contravention of its provisions, it does contain financial penalties for failure to comply.
While the definitions of public official among the CFPOA, the Criminal Code and ESTMA are all slightly different, there is common ground among those definitions. That common ground can be used to tailor anti-corruption policies for companies operating in Canada as it helps to evaluate what actions might attract attention under Canadian regulations.
The application of the CFPOA, the Criminal Code and ESTMA, however, in connection with payments to Aboriginal governments based on those same definitions of public official yield slightly different results. Given the application of the CFPOA is only to public officials of foreign states, any dealings by Canadian companies with Aboriginal governments in Canada would not be captured by the CFPOA. Likewise, the Criminal Code’s prohibition on offering any benefit to a government or government official is limited by the narrow interpretation of “government” in the Criminal Code which is defined as the Government of Canada, the government of a province, or Her Majesty in right of Canada or a province. ESTMA, however, clearly contemplates that its disclosure requirements apply to prescribed payments made to Aboriginal governments in Canada.
Section 29 of ESTMA makes it clear that payments made to Aboriginal governments and officials must be reported by entities engaged in the exploration or production of oil, gas or other minerals beginning on June 1, 2017. The significance of this explicit inclusion of Aboriginal governments in ESTMA demonstrates a shift toward acknowledgement of Aboriginal governments as a prescribed level of government that is treated the same as other levels of government for the purposes of Canadian anti-corruption regulations.
Analysis – U.S. Context
In the United States, prevention of the corruption of foreign officials is governed by the Foreign Corrupt Practices Act (the “FCPA”). The FCPA’s anti-bribery provisions apply to corrupt payments made to foreign officials, foreign political parties and officials thereof, any candidate for foreign political office and any person acting on behalf of any of the persons described above. A “foreign official” is defined by the FCPA to include any officer or employee of a foreign government or any department, agency or instrumentality thereof and includes any person acting in an official capacity for or on behalf of any such government, department, agency or instrumentality.
Aboriginal governments and government officials are also likely to fall within this broad definition of foreign official, especially given the recent proactive enforcement track record of FCPA regulations. The definition does not stipulate that it must be an officer or employee of a government of a foreign country, but simply refers to a “foreign government.”
An Aboriginal government in Canada would be considered a government foreign from the United States and, accordingly, bribery of Aboriginal government officials, representatives and candidates could be captured under the FCPA.
While the definition of a foreign public official is very similar between the Canadian and U.S. anti-corruption regulations, organizations with operations or financial transactions in both countries should customize their anti-corruption policies in order to comply with the most restrictive (i.e. broadest) definition of public official in either Canada or the U.S. in order to avoid the risk of a potential corruption violation in either jurisdiction.
Analysis – U.K. Context
Anti-corruption matters in the United Kingdom are governed by the U.K. Bribery Act. This legislation creates an offence of bribing “foreign public officials,” which are defined as individuals in a country or territory outside the U.K. who hold a legislative, administrative or judicial position of any kind, and individuals who exercise a public function for or on behalf of a country or territory outside the U.K.
Like the situation in the United States, the breadth of the definition of public official in the U.K. may include Aboriginal governments and government officials in Canada. Such officials could be said to be individuals who hold an administrative position of any kind in a country outside the U.K. The definition does not narrowly refer to those holding positions in the national legislature of a foreign state, and as such leaves open the possibility of Aboriginal governments in Canada being included in an interpretation of the application of the U.K. Bribery Act.
Similar to the environment for organizations with operations or financial transactions in Canada and the U.S., Canadian companies operating or with transactions in the U.K. should closely scrutinize their anti-corruption policies in order to ensure they are in compliance with the U.K. Bribery Act where such regulation may be more restrictive than the Canadian regulations.
Aboriginal Government Officials
In Canada, many First Nation communities are governed by an elected Chief and Council. Any Chief or member of Council is likely to be considered a “public official” where the wording of the anti-corruption regulation is broad enough to include Aboriginal governments. In addition, First Nation bands may also have a band manager, or other administrative officers, who are not members of Council but who are empowered with the authority to act as representatives of the band. Such administrative officers may also fall within the definition of a “public official” depending upon how such officials are defined in the applicable anti-corruption laws.
Many Canadian territories and provinces also have various organizations and Tribal Councils with similar forms of administration involving elected or appointed officers which have the authority to govern the members of such organizations or Tribal Councils. Such elected or appointed officers may also be considered a “public official” for the purposes of anti-corruption laws.
Additionally, both Inuit and Métis peoples in Canada are included within the definition of aboriginal peoples in section 35 of Canada’s Constitution Act, 1982 and, accordingly, share the inherent right of self-government. There are several forms of self-government agreement representing Inuit people in Canada. And although there are no formal self-government agreements with any Métis governments in Canada, many structures of Métis government exist across the country, and those governing structures may be considered a “foreign government” for the purposes of some anti-corruption laws. As such, Inuit and Métis leaders may be considered as “public officials” under some anti-corruption regulations.
Persons with operations or transactions in Canada, the U.S. or the U.K., which result in such persons being subject to anti-corruption laws in those jurisdictions, should be aware of and consider communications with Aboriginal government officials in Canada as similar to relations with non-Aboriginal public officials for the purpose of anti-corruption regulations. As a result, communications and dealings with Aboriginal government officials should be monitored in a similar manner to those involving all public officials in order to avoid anti-corruption enforcement scrutiny and penalties related to such dealings.
Organizations should pay special attention to any dealings with persons who may or may not be considered public officials under applicable anti-corruption laws.
Anti-corruption policies should be prepared and/or revised to reflect the broadest possible interpretation of public official in all of the jurisdictions in which an organization operates or has transactions in order to avoid or minimize the risk of violating any applicable anti-corruption regulations.
In Canada, while payments or benefits conferred on Aboriginal government officials may not currently be subject to enforcement under the CFPOA or the Criminal Code, there is a trend toward recognizing such Aboriginal officers as public officials and to preventing bribery of such officials, such as the disclosure requirements contained in ESTMA. Furthermore, given the broad wording of the definition of foreign officials in each of the U.S. and U.K. anti-corruption legislation, it is arguable that such regulations capture any dealings with Aboriginal governments and government officials.
Some organizations, including Teck Resources Ltd. and Canadian National Railway Company, have taken a proactive approach and are already including dealings with Aboriginal government officials in their respective anti-corruption compliance measures despite anti-corruption legislation failing to explicitly include or exclude Aboriginal governments from their purview.
Instead of relying on favourable statutory interpretation in the event of any allegations of corrupt activity, it is prudent to consider including a broad definition of public official in the wording of compliance policies in order to treat Aboriginal government officials as “public officials” for the purpose of anti-corruption regulations.
Given the trend of expanding coverage in anti-corruption enforcement it is extremely important for organizations subject to Canadian, U.S. or U.K. anti-corruption regulations to have robust anti-corruption compliance measures containing a broad definition of public official, which may include Aboriginal government officials, and to frequently review such measures to ensure continued compliance with applicable regulations.
Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.