Mr. Speaker, it is my pleasure to rise today to participate in the third reading debate on Bill , the fighting foreign corruption act. I would like to thank members of the Standing Committee on Foreign Affairs and International Development for considering the bill so quickly and our witnesses for their thoughtful contribution to discussion. I note the chairman of the foreign affairs committee is here, and I just want to say to all the members of the House what a superb job he does chairing that committee.
Corruption, in all its unsavoury forms, is an affront to the values of good, honest and hard-working Canadians. Our government's position of zero tolerance in this area is clear. Canada needs to work to root out corruption wherever it lies, and these amendments to the Corruption of Foreign Public Officials Act, or the CFPOA, offer a vital contribution in this regard.
Before I address the important amendments proposed in Bill , I would like to first provide a sense of the considerable efforts Canada is already making in this area. It is a good story for Canadians and for Canadian businesses, and our government is convinced that the enactment of Bill S-14 would only make it better.
I would like to first establish where we are now; that is, firmly committed to combatting foreign corruption in all its guises. Our government's approach to tackling foreign bribery centres on two main thrusts, its prevention and its enforcement. This draws on contributions from a wide spectrum of stakeholders including federal departments, crown corporations and other agencies, all of whom collaborate closely. These actors have all worked constructively together to develop and implement the range of regulatory and legislative tools already in place to advance this worthy and indeed critically important cause. Canada is truly engaged in a whole of government approach to combatting corruption.
Clearly, the best means of addressing corruption is working to prevent it from occurring in the first place. Consultation and outreach figure heavily in such preventative work, and a number of government stakeholders are already engaged in this area. I would like to highlight a few of them and their contributions.
The Department of Foreign Affairs, for one, looks to prepare its diplomats to deal with the issues of corruption, before they serve abroad. Through the provision of information and training, the department educates its ambassadors and political and trade stream officers concerning the Canadian Corruption of Foreign Public Officials Act and Canada's international obligations in the area of corruption.
In March 2010, DFAIT adopted and provided to its missions around the world the policy and procedure for reporting allegations of bribery abroad by Canadians or Canadian companies. That policy was adopted and circulated to provide guidance to Canada's missions on what they should take as appropriate measures when confronted with allegations that a Canadian business or individual had bribed or attempted to bribe a foreign public official and/or committed other bribery-related offences. The policy essentially instructs Canadian officers at mission to relay any such information received to departmental officials back in Ottawa, who in turn transmit the information to law enforcement authorities here, as per an established set of standard operating procedures.
It should also be noted that DFAIT regularly dispatches its legal officers abroad to deliver presentations and serve as panellists in various fora with a view to advancing the anti-corruption cause and building awareness of the wide range of Canadian activity in this area. As just one example, Canadian legal experts from DFAIT delivered a presentation to the 2011 Conference of the States Parties to the UN Convention against Corruption concerning legal mechanisms for freezing the assets of corrupt foreign officials and for combating the bribery of foreign public officials.
As noted earlier, DFAIT is joined by other departments and stakeholders in such important preventative work. Public Works and Government Services Canada, for example, recently added the bribing of a foreign public official under the CFPOA to the list of offences that render companies and individuals ineligible to bid on contracts. That change became effective in November 2012, and it is hoped that it will serve as an added deterrent to companies and individuals contemplating or engaging in such activity.
Our government, through the combined initiative of several federal departments, also took steps in early 2012 to host a workshop in Ottawa on the subject of foreign bribery, with invited experts from various sectors including NGOs, academic institutions, Canadian companies and law firms. The workshop, entitled “New Ideas for Canada's Fight Against Foreign Bribery” was designed to help innovate and develop better measures for enhancing efforts in this area and saw more than 30 participants join officials in a discussion of several foreign bribery-related areas of interest.
The consultation covered topics such as the recognition of and resistance to the solicitation of bribery, voluntary disclosure, books and records offences, the discouragement of facilitation payments, advocacy concerning SMEs, education, training and focused awareness raising, as well as a discussion of the possibility of amending the CFPOA.
The consultation enabled the government to register preventative messaging with Canadian companies first-hand and to really contemplate how to best improve the enforcement of the CFPOA and seek stakeholder support in working to prevent bribery before it occurs and to detect it when it does. The workshop provided a pivotal platform for enhanced engagement and co-operation with these stakeholders as we look to upgrade efforts in this area. We continue to draw on the invaluable input received. The amendments before us today reflect some of that solicited feedback, and we will probably mine some of the good ideas heard for some time to come.
Prevention is only half of the story. Our government is working hard to ensure that we effectively enforce what already exists in the way of legislation and other instruments established to advance the fight against foreign corruption.
Of course the legislative centrepiece of Canada's work on foreign corruption is the CFPOA, which has been in force since 1999. I believe we are all familiar by now with the reasons for the CFPOA's development and its role in honouring Canada's international obligations in this area, as well as the principal purposes it serves and the main activities it criminalizes. I will not repeat those here.
Rather, I would like to use some of my time today to very briefly flag the indispensable contributions that our key law enforcement agencies are making to the enforcement of that existing legislation governing the corruption of foreign public officials. The RCMP serves as the primary enforcement body for the CFPOA and since 2008 has had an international anti-corruption unit in place enforcing and raising awareness about the CFPOA. With teams placed in both Ottawa and Calgary, the latter owing to its position as the largest hub for Canada's extractive industries and related business, this unit would only get better and more effective with the benefit of Bill 's enactment.
The Public Prosecution Service of Canada works hand in hand with the RCMP to tackle corruption. Since 2006 and its creation, the PPSC has stationed one of its counsel in Ottawa with the explicit mandate to advise and assist the RCMP's two teams in Ottawa and Calgary with their anti-corruption investigations. This collaboration is paying off. We have seen 3 convictions, and there are another 2 cases pending and 35 more under investigation. The penalties are increasing significantly with each conviction, and we can expect this trend to continue as our legislation gets tougher and we get better at identifying and holding these offenders to account. We are on the right track, and Bill would only drive us further in that positive direction.
Having touched on what exists already and where we are at, I would like to turn now to where we are going next. Bill is fundamental to our continued progress, and these reforms would make a significant contribution to our ongoing work to ensure that Canadian companies refrain from bribing foreign public officials and continue to act in accordance with the highest legal and ethical standards in the pursuit of freer markets and expanded global trade. This bill is compelling evidence of our government's commitment to this work, and its passage would send a crystal clear signal to other countries of our expectation that they should hold their own companies to the same account.
These six amendments seek to introduce nationality jurisdiction, specify which authority can lay charges, eliminate the facilitation payments exception, clarify the scope of the CFPOA, increase the maximum penalty and create a new books and records offence.
If I may, perhaps I will just refresh the House's memory as to what each of these amendments would provide for, in turn.
The first amendment, which would introduce nationality jurisdiction, seeks to expand the limited reach of the existing act. The CFPOA's current requirement that the prosecution demonstrate a “real and substantial link” between Canadian territory and the offence charged effectively acts to circumscribe the number of corruption cases we can bring to justice. The assertion of nationality jurisdiction would allow us to tackle possible foreign bribery engaged in by Canadians or Canadian companies regardless of where that bribery might take place, by enabling us to prosecute them on the basis of their Canadian nationality alone.
The second amendment would provide the RCMP exclusive authority to lay charges under the act. This would permit the RCMP to ensure that there is a uniform approach taken to the pre-charge stages of the CFPOA cases throughout Canada. It would also put Canadian businesses on notice that it is clearly the RCMP that is the lead law enforcement agency as far as investigations are concerned.
The third amendment proposes to eliminate the facilitation payments exception currently provided for under the CFPOA. In essence, any payments made to expedite or secure the performance by a foreign public official of any act of a routine nature do not constitute bribes for the purposes of the current act. Such facilitation or grease payments to move along a foreign public official's performance of something he or she is already beholden to perform are plainly open to abuse and should also be characterized as bribes, which are payments specifically made to extract a business advantage and are already illegal under the act.
Indeed, bribes are illegal under the legislation of every OECD country. This is important in light of any concerns that this amendment would place Canadian companies at a competitive disadvantage internationally. As noted in the bill, the entry into force of the specific amendment would be delayed to further address any such concern in recognition of the fact that some other countries continue to permit facilitation payments and, most importantly, to provide Canadian companies with a fair and reasonable amount of time to adjust their own practices, internal policies and operations should that prove necessary.
The fourth amendment, which proposes the elimination of the words “for profit” from the definition of business would ensure that the reach of the CFPOA is not unduly restricted. It clarifies that the scope of the CFPOA is plainly not limited to bribes paid to for-profit enterprises or in the course of profitable businesses. This is key if we are target those who pay bribes on behalf of companies that may not earn a profit in a given year, as well as organizations with a not-for-profit raison d'être. These entities would be caught within this proposed change.
The fifth amendment is straightforward: an increase in the maximum jail term for a foreign bribery offence under the act to 14 years. It is currently set at five. The current possibility of unlimited fines for such offenders would remain untouched.
The new books and records offence that composes the sixth proposed amendment is meant to prevent individuals and companies from cooking the books. While there are offences under the Criminal Code that criminalize the falsification of books and records, they are not specific to foreign bribery. Canada is required to put such specific measures in place in order to honour its obligations under international anti-corruption treaties to which it is a party. The amendment would add another enforcement measure to our tool kit and would be punishable by a maximum of 14 years' imprisonment and unlimited fines; the same severity that is in place for the offence of foreign bribery.
Bill was adopted by the other place as tabled and I would offer that it is plainly in the national interest that the House do the same. If adopted, the amendments I have just described would clearly and unequivocally demonstrate to interested parties in Canada and abroad that corruption is simply not the Canadian way of doing business, nor should it be the way of doing business anywhere. Ensuring a level playing field for international business is crucial to the global fight against foreign bribery. Legislation such as Bill S-14 is vital if economic growth and expanding global trade and prosperity are to flourish. Indeed, foreign bribery works to undermine that growth, trade and prosperity and to corrode the rule of law that is the foundation for the market freedom so absolutely vital to a trading nation such as Canada.
Bill seeks to ensure that our companies continue to embrace the highest legal and ethical standards in pursuing their business internationally. Canadians expect no less, and rightly so. Our government firmly believes that Canada can compete with the best and win fairly. Bill S-14 is an expansion of that belief and of our twin commitment to both strengthening the fight against corruption and securing jobs, economic growth and long-term prosperity for all Canadians. I ask all hon. members in the House to work with us to ensure its passage into law as quickly as possible.
Mr. Speaker, I rise to speak, yet again, to Bill . We on this side of the House have mentioned before that we support the bill. We believe that we could go further, as I mentioned in my comments and questions to the parliamentary secretary.
As I have done with all of these bills, I have to start off with our concern and my concern about the way the bill came to us. We have a bill on foreign corruption that has come to us from the other place. When a bill has an “S” in front of the bill number, it is an indication that it comes from the Senate. It has been said numerous times since we have been debating the bill that the government should have seen fit to start this bill here in the House. After all, the elected representatives, I think, are the best people to actually look at corruption, notwithstanding what is happening in the other place, speaking of corruption. Every day there is another story of corruption in the other place. I have to start by underlining that point.
The government seems to not even blush anymore when bills are sent over from the other place. At least on this bill, it should show some contrition that there is a bill, an act to amend the Corruption of Foreign Public Officials Act, that would crack down on foreign corruption, yet it comes from the other place, an unelected body, that is mired in corruption right now.
It is rather stark to see this happening with the current government, which claimed that it was going to be different. Now it has become just like the other guys. The government brings in closure and uses the Senate, abuses the Senate, to do its toil. That is what the government has done with Bill . No one even blushes anymore. It is just business as usual with the current government. It uses the Senate to do its bidding, even on something as important as foreign corruption.
The bill itself, as has been mentioned, would simply bring us up to the minimum standard of our allies. The government was embarrassed by our critique, on this side of the House, in terms of how the standards of our companies abroad have fallen in terms of enforcement on corruption and corporate social responsibility. We just saw a news report last night about what happened in Bangladesh. We should not forget that. The NDP called for hearings at the foreign affairs committee. We would like to see more done on that.
It is about Canada getting back into the game and actually leading. The bill does not go far enough.
I will just give a quick résumé. The bill would make four major changes to the Corruption of Foreign Public Officials Act.
It would increase the maximum sentence, as was mentioned by the parliamentary secretary.
It would eliminate the exception for so-called facilitation payments, which is basically paying someone to grease the wheels to get a contract moving. Interestingly, we saw allegations of that happening in Montreal. Maybe we should be applying those rules more forcefully here. Maybe the government should be taking a look at who its candidates are when it recruits them and who it hires as staff when ministers hire ex-candidates. Hopefully, it will do a better job on that.
The bill would also create a new offence for falsifying or concealing books or records. We just received a communiqué from the G8, which came out half an hour ago. In fact, if the government is going to live up to what it has signed on to, it would actually have to amend the bill further, because there is an incentive in this communiqué for the government to do more in this area and to be more transparent in terms of books and records.
The fourth part of the bill would establish national jurisdiction such that Canadian nationals could be prosecuted for offences under the act that are committed overseas. They cannot go overseas and do something they could not do here.
I think it is important to put it into context. As I mentioned, we just received the communiqué from the G8 conference. It touches on many of the aspects we are dealing with in Bill . It is a 10-point communiqué. I am not going to read all 10 points, because they are not all directly related to the bill we are debating.
The first point the G8 leaders signed on to is that “[t]ax authorities across the world should automatically share information to fight the scourge of tax evasion”.
When we talk about the corruption of foreign officials, a lot has to do with the way money moves around. I am delighted to see that this is in the communiqué. We will see if the government takes this seriously.
Second is that countries “should change rules that let companies shift their profits across borders to avoid taxes, and multinationals should report to tax authorities what they pay where”. This has been mentioned already by the parliamentary secretary. It would mean more transparency of companies' operations.
Third is that “[c]ompanies should know who really owns them and tax collectors and law enforcers should be able to obtain this information easily”. If we do not have this in place, the S-14 provisions would be very difficult to enforce, in some cases, because if we do not know who owns companies, we do not know who is influencing the companies. We do not have a full profile. In other words, if we were trying to establish that there was a payment to a company official, and we did not know who the company belonged to, it would be very difficult to prosecute.
We have heard from the G8 meetings that Canada was fighting this. We should be fighting back and getting the government to comply. It turns on the issue of beneficial ownership. That means that a company is hidden behind a shell. What the G8 is looking at, and what Mr. Cameron is pushing for and what number three in the communiqué is about, is that there be full disclosure. Companies can no longer have this parlour trick of hiding behind beneficial ownership. That means having a public registry of all companies showing exactly who owns them. We do not have that right now. Prime Minister Cameron said, “Personally, I would hope the whole world will move towards public registers of beneficial ownership”.
Aid agencies say that private registries would be second best. In other words, there would be a registry, but it would not be public; it would be in government. We are hearing that only the U.K. and the U.S. have committed to having public registries.
I hope the government will take this seriously, because if we are to deal with foreign corruption, we have to have transparency. If we are serious about this communiqué we have signed on to, we have to have a public registry of all companies, who owns them and where they sit. Otherwise, we will not be able to live up to the spirit of transparency.
Fourth is that “[d]eveloping countries should have the information and capacity to collect the taxes owed them—and other countries have a duty to help them”. This is critical when it comes to the issue of being able to influence foreign officials. What we often hear, on the ground, in emerging or developing economies is that officials are able to take advantage of their power to approve projects, et cetera, mainly because there is not a requisite tax system with the proper enforcement and oversight, so they can get away with it. This is what leads to corruption, because there is no proper oversight.
This is extremely important, because obviously, it would help benefit their citizens. It is also a way to deal with the potential for corruption. If there is full disclosure and sunlight, if you will, on who owes taxes and whether they have been paid, it is a disincentive for officials to use their power for corruption.
The fifth point is very important for us in the NDP: “Extractive companies should report payments to all governments—and governments should publish income from such companies”.
We have heard a positive message from the government that it will get behind this. We need to see legislation. From what we have seen and heard from the government, there is no requirement that these reports are to be made public. It is important that we fully embrace transparency and not go just halfway.
By the way, mining companies have said that they would sign on to this. I am hoping that all the extractives will get behind it.
Number six is very near and dear to my heart. It states: “Minerals should be sourced legitimately, not plundered from conflict zones”. As members know, this is the whole issue of conflict minerals. In places like the eastern part of the Congo, where there are human rights abuses and massive corruption, it is a conflict zone. Minerals that go into all of our devices, such as BlackBerrys and cell phones, come from a conflict zone. In essence, we are all, unknowingly for many people, carrying a piece of a conflict in our electronics, because we do not have the proper sourcing of minerals.
What the communiqué says is that “Minerals should be sourced legitimately, not plundered from conflict zones”. This is a challenge to the government. Are the Conservatives going to get on board? Bill , which I put forward, would allow us to comply with what we have seen in the United States with Dodd-Frank. Legislation is in place to ensure that all minerals are from legitimate sources and are not aiding and abetting conflict. The Europeans are moving in this direction. The OECD, which we talked about in terms of this bill, has provided guidelines on ensuring that there is proper and appropriate oversight when it comes to sourcing minerals.
The sixth point is very important, and it is something I have worked on with a lot of people, including people in this place, to get Canada on board and at least get us up to the standard that has been established by others.
Number seven is very important: “Land transactions should be transparent, respecting the property rights of local communities”. When it comes to the corruption of foreign officials, one of the biggest trends we have seen in the last while is the acquisition of land by foreign countries, particularly in developing countries. There is a massive land grab going on right now, particularly in Africa. I will name some countries. China is big into this right now. It is banking land, taking over land. We need to ensure that local communities are respected.
Let us be honest. We are not perfect here in Canada. When we talk about social licence for companies to do their work in extractives, oil and gas, we need to respect local communities. This is an extremely important and urgent issue in developing countries, because we are seeing massive land grabs. It is about food security and about certain countries banking land and keeping an eye on their needs for minerals, oil, gas, et cetera, and in some cases, even food.
Number eight states that governments should roll back some measures on trade that they think would be helpful for trade.
Number nine is about ensuring that things are streamlined, particularly at borders between countries. We certainly know that issue with respect to our friends south of the border. Mr. Speaker, representing your constituency, you do not have to be told that this is extremely important.
Number 10, the last part of the communiqué from the G8, states: “Governments should publish information on laws, budgets, spending, national statistics, elections and government contracts in a way that is easy to read and re-use, so that citizens can hold them to account”. That is actually for us. I am going to read that one again. It is cogent, because if we are going to talk about fighting corruption abroad, we need to be transparent at home. The G8 has signed on to this.
“Governments should publish information on laws, budgets”—think about the parliamentary budget officer here—“spending, national statistics”—this is very interesting, considering what we have done to Stats Canada—“elections and government contracts in a way that is easy to read and re-use, so that citizens can hold them to account”. Number 10 needs urgently to be brought into force here.
I have listed these G8 points that just came out in the communiqué, because as I said in my comments when I questioned the parliamentary secretary, this bill does not go far enough. If we are going to seriously deal with corruption abroad, and we are going to actually be leaders, then it is not good enough just to get up to a minimum standard. That is not the Canadian way. I feel that we are living in the past with the current government.
The way the current government seems to operate, and the parliamentary secretary said it well himself, is that the Conservatives brought forward Bill because the OECD had cited us as being laggards. It was not until that happened that the government decided to bring forward this legislation. That is not the Canadian way. We should be leading. We should be looking at our practices to see where we are in terms of other jurisdictions.
Everyone knew that we were laggards. Transparency International has been saying so for quite a while.
We can look at this 10-point communiqué of the G8. Are we going to at least meet the standard of our allies? I would like us to see us go further.
For instance, I am concerned when it comes to the issue that Prime Minister Cameron cited about companies being transparent about who owns them so that we can deal with tax evasion. We are hearing that Canada is not going to do that. We are not going to publicly publish who owns a company.
As I mentioned, we need to deal with corruption seriously. We need to have full daylight, and if the government is only going to go halfway on this initiative, we will again fall back. We will be back in this House debating a bill to bring the standard up yet again. The government should embrace what both the U.K. and the U.S. are planning to do and have public registries listing who owns which companies. It should stop the shell game, particularly this practice of “beneficial ownership”.
The point is to make sure that we are transparent when it comes to the extractive industry. The government talked about signing on to the initiative for ensuring that all payments made between foreign governments and Canadian companies are transparent, but to whom? Is the information going to be kept within government, or would it be public? Will we have to ATI to obtain it, or would government do what other governments have done and make it transparent?
As I mentioned before, we must ensure that we get up to the standard of other countries on the issue of conflict minerals so that we no longer are looking the other way when it comes to the sourcing of the supply chain for many of the things that we rely on in our technologies.
If we are serious about it, we would embrace these initiatives of being fully transparent on who owns what companies, being fully transparent and pushing transparency when sourcing minerals in the supply chain for our electronics, and being fully transparent about payments between companies and governments abroad. Then we would be at the same standard as our allies. If we do not meet that standard, then we will be left with what we are doing here, which is trying to catch up.
I will be a bit partisan: what we have seen from the Conservative government is that we have become laggards. We sign on to international treaties, but then we do not follow up with implementation that lives up to the treaty.
For example, we have been called out by Norway and the Red Cross on the fact that the cluster munitions treaty that we signed on to will be undermined by Bill , the proposed implementation legislation, which we have debated. It would undermine this international treaty.
We must think about this for a second. The International Committee of the Red Cross never comes out and criticizes government, but they just did yesterday. It said that Bill , the implementation bill for the cluster munitions treaty that we have signed on to, would actually undermine the treaty. It is shocking.
I am very concerned that when we sign on to this communiqué for the G8 that we actually follow up, live up to the spirit of what we have signed on to and not undermine it.
Another example when it comes to international treaties is the arms trade treaty we agreed to. Then we find the gun lobby taking it over from the government. It is astonishing.
Instead of embracing the future, these guys are living in the past. They are affecting our reputation. Instead of getting on board with progress, they are holding us back just because of their ideology.
Bill will be supported by the NDP simply because it is the least the Conservative government can do. However, what we want to see is full transparency. When we see the follow-up to the communiqué on the G8, we will be holding the current government to account to at least come up to the standard of our allies.
Personally, and I am sure I speak on behalf of my colleagues, we would like to see Canada lead and not be a laggard. It is something I think most Canadians want to see as well.