Canada’s Implementation of the UN Convention against Corruption

							Canadian Public Integrity and Anti-Corruption
              Measures and the
 United Nations Convention against Corruption




      International Centre for Criminal Law Reform
                         and Criminal Justice Policy
                                   1822 East Mall, Vancouver
                          British Columbia, Canada V6T 1Z1
                                       Tel: 1 (604) 822-9875
                                       Fax: 1 (604) 822-9317
                                     Email: icclr@law.ubc.ca
                                        www.icclr.law.ubc.ca
Canadian Public Integrity and Anti-Corruption
Measures and the United Nations Convention
against Corruption


By

Douglas R. Breithaupt*
Senior Counsel
Criminal Law Policy Section
Department of Justice
Government of Canada



Paper prepared for
The First IAACA (International Association of Anti-Corruption Authorities)
Seminar on Anti-Corruption


Guangzhou, Guangdong Province, China

June 2007




As part of the International Centre for Criminal Law Reform and Criminal Justice Policy
(ICCLR) and GeoSpatial SALASAN Programme: The Canada China Procuratorate Reform
Cooperation Project, supported by the Canadian International Development Agency.




*The views expressed by the author in this paper do not necessarily represent the views and the position of the
Department of Justice or the Government of Canada.




                                                          2
Introduction

This paper offers a survey of Canadian public integrity and anti-corruption measures1 against the
backdrop of the United Nations Convention against Corruption. Special attention is given to
highlighting recent developments, as well as innovative approaches that may be of particular
interest to other countries and assist them in their implementation efforts.

Background

The United Nations Convention against Corruption (UNCAC) constitutes the first global
convention against corruption. It is comprehensive, balanced and multidisciplinary in nature.
Inspired by pre-existing international anti-corruption instruments, the negotiators of the
Convention saw the benefits in combating corruption in multi-faceted ways, and incorporated in
the Convention broad-ranging preventive, criminal, international cooperation and other
measures. As a result, the Convention can serve as an effective tool to be employed by the
international community in preventing and combating corruption. It remains the task of the
Conference of the States Parties, and the individual states themselves, to take the necessary steps
to implement the Convention and realize the full benefits that it offers.



The Convention includes chapters dealing with preventive measures; criminalization and law
enforcement; international cooperation; asset recovery; technical assistance and information
exchange; and mechanisms for implementation. The asset recovery chapter marks a major
breakthrough in international law and represents an advance not seen in other conventions.



The Conference of the States Parties to the UNCAC held its inaugural meeting at the Dead Sea in
Jordan in December 2006, and efforts are underway to prepare for the Second Meeting of the
Conference of the States Parties in Bali, Indonesia, with special attention being paid to the issues
of the review of implementation of the treaty, asset recovery and technical assistance. One of the
key challenges is to focus on meeting the needs for the gathering of information on
implementation efforts by States Parties.




                                                 3
Canada has been active for many years in international anti-corruption efforts and is a State Party
to the Inter-American Convention against Corruption, the Convention on Combating Bribery of
Foreign Public Officials in International Business Transactions, and the United Nations
Convention against Transnational Organized Crime. Canada is also a member of the follow-up,
or implementation, mechanisms to the above-mentioned treaties.



While the constitutional law of some countries dictates that treaties that have entered into force
for those countries have the force of domestic law within them, in Canada the situation is
different. In Canada, treaties do not have the force of domestic law. If law reform is required to
put Canada into compliance with a treaty, and Canada wishes to become a State Party to that
treaty, then legislative proposals are developed for the consideration and approval of the
Canadian Parliament. Once the necessary amendments have come into force, Canada is then in a
position to ratify the treaty. Where the pre-existing laws are sufficient to ensure compliance with
the treaty obligations, then the Government can proceed directly with ratification without any
legislative amendments.


There is an extensive legislative, regulatory and policy framework in place in Canada that
advances the stated purposes of the Convention, namely: to prevent and combat corruption;
promote, facilitate and support international cooperation and technical assistance, including in
asset recovery; and promote integrity, accountability and good governance.2 This framework is
under ongoing review and initiatives are taken to improve and add to the measures, as needed.
For example, on December 12, 2006, Parliament passed the Federal Accountability Act3 in an
effort to overhaul, strengthen and update public integrity and anti-corruption measures in various
areas.


In the case of the UNCAC, Canada already essentially met the requirements of the Convention,
but some minor technical amendments were necessary before Canada could become a Party to
the Convention. With this in mind, on March 22, 2007, the Minister of Justice introduced Bill C-

1
    This paper focuses on a representative sampling of relevant federal measures.
2
    Article 1 of the Convention.




                                                                         4
48 (An Act to amend the Criminal Code in order to implement the United Nations Convention
against Corruption)4. The key amendment focussed on providing for the forfeiture of
instrumentalities under the Corruption of Foreign Public Officials Act by amending the Criminal
Code. The bill received Royal Assent on May 31, 2007.


Preventive Measures (Chapter II, Articles 5 to 13)


Chapter II of the Convention sets out an impressive number of articles that identify a wide array
of preventive measures, which can inform effective anti-corruption programs or efforts within
states. It calls for measures that reflect the overarching principles of the rule of law, good
governance, integrity, transparency and accountability. The measures encompass both the public
and the private sector, and States Parties are also required to take appropriate steps to encourage
the active participation of individuals and groups outside the public sector, including civil
society, non-governmental organizations and community-based organizations, in the prevention
of and the fight against corruption. Certain of the preventive measures can also be linked to and
support provisions that are found in other chapters. For example, in Chapter II, the preventive
measures in relation to money-laundering are also relevant to provisions found, for example, in
Chapter III (Criminalization and Law Enforcement) and Chapter V (Asset Recovery).


Articles present in Chapter II address particular issues, such as the need to: develop, implement
and maintain effective, co-ordinated preventive anti-corruption policies and practices; ensure the
existence of a preventive anti-corruption body or bodies; endeavour to adopt and strengthen
systems for public sector hiring, recruitment and training and, as appropriate, address matters
relating to the candidature and election of persons to public office and to political party
financing; consider establishing codes of conduct for public officials, and establish measures and
systems to facilitate the reporting of acts of corruption by public officials to appropriate
authorities; establish appropriate systems of public procurement and promote transparency and
accountability in the management of public finances; take measures to enhance transparency in
public administration; strengthen the independence and the integrity of the judiciary and of

3
    http://www2.parl.gc.ca/HousePublications/Publication.aspx?DocId=2786349&Language=e&Mode=1.
4
    http://www2.parl.gc.ca/HousePublications/Publication.aspx?DocId=2614169&Language=e&Mode=1.



                                                                 5
prosecution services; put in place measures to prevent corruption in the private sector, including
enhancing auditing and accounting standards; promote the active participation of society in
preventing and combating corruption; and establish various measures to prevent money-
laundering.


Professional, non-partisan public service


A professional, non-partisan public service is an essential pre-condition for a stable, democratic
system of government. In Canada, it is the role of the Public Service Commission, under the
Public Service Employment Act, to serve as the guardian of public service staffing, ensuring that
qualified persons are appointed to, and within, the public service. The principles of merit and
non-partisanship are meant to characterize the appointment process, and the appointment policy
is intended to foster a public service that is representative and able to serve the public with
integrity in the official language of choice. The values to guide the staffing process are fairness,
transparency, access and representativeness.5 As a means to buttress personal integrity within the
federal public service, all federal public servants are required, on appointment from outside the
federal public service, to take and subscribe to the oath or solemn affirmation of allegiance.




In the interests of creating and sustaining the best public service possible, in November 2003,
Parliament passed the Public Service Modernization Act (PSMA), which brought about
significant reforms. These included the Public Service Labour Relations Act, which established a
Public Service Labour Relations Board, a conflict management capacity within departments and
sought to develop an improved labour relations regime in the public service. The Financial
Administration Act was amended to enhance human resources management practices. The new
Public Service Employment Act was enacted to modernize staffing practices and establish a new
Public Service Commission. As well, the PSMA created the Canada School of the Public
Service to deal with learning and development.




5
    http://www.psc-cfp.gc.ca/psea-lefp/framework/policy/appointment_policy_2_e.htm


                                                        6
More recently, the Federal Accountability Act has put in place a new Public Appointments
Commission to support and oversee transparent, fair, and merit-based appointments to agencies,
boards and commissions. It also has instituted a uniform approach for the appointment of Officers
and Agents of Parliament, which is to involve Parliament in the process.


Under the Public Service Employment Act, the Public Service Commission has the responsibility
and discretion for allowing public servants to leave the public service in order to become
candidates in federal, provincial or territorial elections. In addition, the Commission can respond
to any complaints that may be made suggesting that an employee has failed to meet the legal
requirements for becoming a candidate. If the complaint is well-founded, the employee can be
dismissed. Once elected, the employee ceases to be a public servant.


Electoral reform


The Canada Elections Act governs the holding of federal elections in Canada, including the
registration of political parties and matters relating to campaign donations and the financing of
political parties and candidates in Canada. In 2000, this Act was comprehensively modernized,
re-organized and reformed. Among other things, the Act prohibits bribery in relation to voting
and the intimidation of voters.


In 2003, the Canada Elections Act was amended to tighten the rules for political contributions.
In particular, the disclosure requirements were extended to electoral district associations and to
leadership and nomination contestants. Contribution limits were put in place, applying to
individuals and others. More recently, the Federal Accountability Act amended the Canada
Elections Act to further restrict limits on individual donations to federal political parties, riding
associations and candidates, and to prohibit contributions from corporations, trade unions and
associations to parties or candidates, in an effort to increase transparency and integrity in the
election process. By allowing only individual contributions to a maximum annual amount of
$1,000 for individuals (from $5,000), political parties and candidates must directly canvass
individuals for financial support.




                                                   7
Conflicts of Interest


The federal government of Canada has standards of conduct in place, which provide for the
correct, honourable and proper performance of public functions, through a combination of
federal statutes, parliamentary rules and values and ethics codes. These include a Conflict of
Interest and Post-Employment Code for Public Office Holders and the Values and Ethics Code
for federal public servants.


The Values and Ethics Code for the Public Service offers support to public servants in relation to
their professional activities. It highlights democratic, professional, ethical and people values for
civil servants and contains conflict of interest and post-employment measures for them to
observe. The Code applies to public servants working in departments, agencies and other public
institutions within the federal government. It is considered as one of the policies of the
Government of Canada and is treated as one of the conditions of employment in the Public
Service of Canada. The Canada School of the Public Service includes a values and ethics
component in its mandatory training programs for supervisors, managers, executive and
functional specialists.


The Parliament of Canada Act contains a framework for the administration of conflict of interest
pertaining to Senators and to Members of the House of Commons. A Conflict of Interest Code
for Members of the House of Commons was adopted on April 29, 2004 and is appended to the
Standing Orders of the House of Commons. The Conflict of Interest Code for Senators was adopted
on May 18, 2005 and is administered by the Senate Ethics Officer, who is independent of the
Government.


Public office holders, such as Ministers, Ministers of State, their staff, Parliamentary Secretaries,
as well as Governor in Council appointees, are governed by the Conflict of Interest and Post-
Employment Code for Public Office Holders. For some time in the past, this Code was not found
in legislation. However, the Federal Accountability Act enacted the Conflict of Interest Act,
which enshrines the provisions of the Code. The Federal Accountability Act also created the
Conflict of Interest and Ethics Commissioner, who is responsible for administering the Conflict



                                                  8
of Interest and Post-Employment Code for Public Office Holders and the Conflict of Interest
Code for Members of the House of Commons. The Commissioner is to have the powers to
initiate formal investigations and hear complaints, including from the public, and impose
administrative monetary penalties for administrative breaches of the Act. As well, the Prime
Minister has recently issued a revised edition of Accountable Government: A Guide for
Ministers and Secretaries of State, which is designed to strengthen the accountability of public
office holders. It issues ethical guidelines for public office holders, as well as guidelines for their
political activities.


Potential or perceived conflicts of interest between paid lobbyists and public office holders regarding
government decisions are also addressed through the Lobbyists Registration Act (to be re-named the
Lobbying Act) and the Lobbyists Code of Conduct. While it is acknowledged that lobbying is a
legitimate activity in our democratic system, there is a recognition that such activity should be
carried out in an ethical and transparent way. Thus, paid lobbyists are required to register under the
Act and information received becomes part of the public record. In an effort to address perceived
deficiencies in the Act¸ various changes were called for in the Federal Accountability Act. In
particular, it provides for a new Commissioner of Lobbying. The Commissioner is to be an
independent Officer of Parliament with the responsibility and the powers to investigate violations
under the Lobbying Act and the Lobbyists Code of Conduct. Additional changes include a prohibition
on the payment of fees contingent on a successful lobbying outcome, as well as increased
information collection requirements.


Whistle-blowing


The Public Servants Disclosure Protection Act came into force on April 15, 2007. It protects
public servants and Canadians who report wrongdoing in the federal government. The Act
confers upon the Public Sector Integrity Commissioner the status of an independent Agent of
Parliament and gives the Commissioner an extended mandate to deal with complaints. Further,
the Act provides for the establishment of a new independent Public Servants Disclosure
Protection Tribunal, with the power to determine whether a reprisal has occurred, as well as the
authority to order remedial action and disciplinary measures. The Act includes protections from
reprisals for good faith disclosures of government wrongdoing from employers against


                                                   9
employees, but also from possible government reprisals in the form of terminating contracts or
withholding payments, from refusing to enter into a contract or from withholding a grant or
contribution. As well, the Act provides for an Annual Report to Parliament to provide an
overview of disclosure activity across the government.



In addition, the Criminal Code includes an offence (section 425.1), which seeks to protect
employees who wish to report an offence that the employees believe has been or is being
committed by the employer and employees who have reported suspected unlawful conduct, from
employment-related threats and retaliation. The offence includes the protection of employees in
the private sector.


Management of Public Finance


In the federal government of Canada, extensive measures are in place to deal with the
appropriate management of public finance, including the Financial Administration Act and its
regulations, Central Financial and Accounting Policies and Departmental Financial Policies.


The Auditor General of Canada, an Officer of Parliament, is responsible for conducting financial
and performance audits and special examinations of federal departments and agencies, most
Crown corporations and many federal organizations. Reporting publicly to the House of
Commons on the results of such audits, the Auditor General assists Parliament in holding the
government to account for its stewardship of public funds. The Federal Accountability Act
strengthens the role of the Auditor General by giving the Auditor General the power to inquire
into the use of federal funds by recipients.


The Federal Accountability Act has also sought to increase transparency and credibility in the
Government’s fiscal forecasting and budget planning, including by providing for the
establishment of a Parliamentary Budget Officer, and by making improvements to the fiscal
planning framework to increase accountability to Parliament through, for example, designating




                                               10
deputy heads and deputy ministers as accounting officers for their departments. In addition, the
new Treasury Board Internal Audit Policy came into force on April 1, 2006.


Reviews are currently underway to streamline and strengthen Treasury Board policies governing
financial management and procurement policy in order to enhance efficiency and accountability.


Public procurement

The federal government uses an electronic tendering service as the means to distribute bid
notices and procurement documents to suppliers. Improvements to the federal procurement
process have been addressed in the Federal Accountability Act, which seek to promote
fairness, openness and transparency in the bidding process for government contracts. Specific
new developments include providing for the establishment of a Procurement Ombudsman to
review procurement practices and complaints and, where necessary, make recommendations to
Government to compensate unsuccessful bidders who have legitimate complaints. The
Procurement Ombudsman would submit an annual report to the Minister of Public Works and
Government Services, who would then table that report in Parliament. In addition, a Code of
Conduct for Procurement is planned, for both public service employees and suppliers, which
would incorporate existing conflict of interest and anti-corruption policies. Contracts are required
to include integrity provisions, which seek to prevent corruption, collusion and the payment of
contingency fees.


Access to information


Access to government information assists the public in participating more fully in the policy-
development process and in holding the Government to account. In Canada, the Access to
Information Act regulates and facilitates the access of the public to information in the control of
federal public institutions in accordance with certain principles and subject to certain specified,
and limited, statutory exemptions and exclusions. The Privacy Act governs matters in relation to
personal information held by the federal government. The Federal Accountability Act has
recently expanded the scope of the Access to Information Act. The Information Commissioner



                                                 11
and the Privacy Commissioner investigate complaints made under the Access to Information Act
and the Privacy Act, respectively.


Independence of the judiciary


The importance of an independent judiciary is well-understood, and is an important prerequisite
for a healthy democracy. In Canada, the principle of an independent judiciary is recognized in,
and protected by, the Canadian Constitution, which guarantees financial security, security of
tenure and administrative independence in the functioning of the courts. The independence of the
judiciary is also increased through self-regulation, including through codes of conduct.


Prosecutors


Traditionally, the Attorney General of Canada was given the statutory right to provide legal
advice to investigative agencies and government departments on criminal law matters, and could
(usually by way of delegation to crown counsel) exercise prosecutorial discretion in the public
interest. More recently, however, the Federal Accountability Act has enacted the Director of
Public Prosecutions Act, which transfers the responsibility for the conduct of all federal
prosecutions from the Attorney General of Canada to the Director of Public Prosecutions (DPP).
This change was said to be important for promoting transparency and integrity in government.
Final and binding decisions to prosecute are to be made by the DPP, unless the Attorney General
provides contrary and publicly-available written instructions. The DPP is to provide an annual
report to be tabled in Parliament.

Review mechanisms


In respect of the federal government, there are many review bodies that play a role in promoting
accountability and they file annual reports to Parliament.




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Private Sector and Civil Society


Canada has a robust and vigorous private sector and civil society. Public consultation is a way of
ensuring that citizens are given an opportunity to participate in government decision-making
with regard to public policies, legislation, regulation and programs. In addition, Parliamentary
processes are in place to scrutinize government action.


Consultations have also taken place in Canada on anti-corruption and related initiatives. For
example, Government of Canada conducted consultations on the proposals that resulted in the
UNCAC. Recently, for example, the Department of Foreign Affairs and International Trade held
a series of national roundtables on Corporate Social Responsibility in the mining, oil and gas
sectors and the impact of the corporate operations in these sectors in developing countries. The
roundtables focussed on examining ways to meet or exceed relevant international CSR standards
and best practices. The federal government has a website called “Consulting with Canadians”,
which allows members of the public to access and participate in ongoing consultations, and also
provides information on past consultations.6


In addition, an annual report to Parliament is required on the enforcement of the Corruption of
Foreign Public Officials Act and on the implementation of the Convention on Combating Bribery
of Foreign Public Officials in International Business Transactions.7


The freedom of the press and other media of communication is guaranteed by the Canadian
Charter of Rights and Freedoms, which is part of the Constitution of Canada and is the supreme
law of Canada.


Criminalization and Law Enforcement (Chapter III – Articles 15 to 42)


Chapter III of the UNCAC marks an ambitious chapter of the Convention, which sets out a broad
range of conduct to be criminalized by States Parties in order to combat corruption


6
    http://www.consultingcanadians.gc.ca/cpcPubHome.jsp?lang=en
7
    For a copy of the most recent annual report, please see: http://www.international.gc.ca/tna-nac/DS/7-report_parliament-en.asp



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comprehensively. The conduct to be criminalized spans both the public and private sectors, and
encompasses some conduct that States Parties are required to establish as criminal offences and
other conduct that States Parties are required to consider criminalizing. Article 20, the offence of
illicit enrichment, is unique in that each State Party needs to consider criminalizing this conduct,
subject to its constitution and the fundamental principles of its legal system. The opening words to
that Article parallel the wording in Article IX of the Inter-American Convention against Corruption.
In addition to addressing the issue of criminalizing certain conduct, the Chapter also includes
provisions dealing with such matters as liability of legal persons; participation and attempt; statute
of limitations; prosecution, adjudication and sanctions; freezing, seizure and confiscation; protection
of witnesses, experts and victims and of reporting persons; compensation; specialized authorities;
cooperation; bank secrecy; and jurisdiction.


The Criminal Code includes offences which prohibit bribery (sections 119, 120), frauds on the
government (section 121), fraud or a breach of trust in connection with the duties of office (section
122), municipal corruption (section 123), selling or purchasing office (s. 124), influencing or
negotiating appointments or dealing in offices (section 125), wilfully attempting to obstruct, pervert
or defeat the course of justice through bribery or other corrupt means (subsection 139(3)), fraud
(section 380), and secret commissions (section 426). In addition, a number of Criminal Code
provisions prohibit efforts to deceive others or to induce others to rely on inaccurate books and
records, such as section 321 (definition of “false document”); section 362 (false pretence or false
statement); section 366 (forgery); section 380 (fraud); section 397 (falsification of books and
documents); and section 400 (false prospectus).


The possession of property or proceeds obtained by crime (section 354) and the laundering and
concealing of property and proceeds of crime (section 462.31) are also criminal offences. Part XII.2
of the Criminal Code deals comprehensively with proceeds of crime. Regardless of where the
offence occurs, the proceeds of crime may be seized or restrained and forfeited in Canada if the
underlying conduct, had it occurred in Canada, would have constituted a designated offence in
section 462.3 of the Criminal Code. All relevant Criminal Code corruption offences are
designated offences, and no limitation period applies to them. 8

8
    See also the discussion of Criminal Code and other provisions under the Asset Recovery section.



                                                                        14
This regime provides for search and seizure of proceeds of crime (section 462.32); for a restraint
or freezing order (section 462.33) and for the forfeiture of proceeds of crime (section 462.37).
Under the Criminal Code, an application may be made to a judge for a management order in
relation to seized or restrained property (section 462.331), while the Seized Property
Management Act provides rules for the management of such property.



The Corruption of Foreign Public Officials Act entered into force on February 14, 1999. It
criminalizes bribing a foreign public official. To date, one conviction has been registered under the
Act against an individual and another against a corporation.


New indictable offences have recently been created in the Financial Administration Act for fraud
with respect to public money or money of a Crown corporation. The penalties for these offences
are more severe than for the general offence of fraud, and conviction under these offences creates
an inability to contract with the government or hold a government office.


In addition, the Income Tax Act contains a provision prohibiting the tax deductibility of bribes.
Other federal statutes contain specific provisions relating to the conduct of public officials who
administer the statutes. For example, section 129 of the Immigration and Refugee Protection Act
prohibits the bribery of an officer or employee of the Government of Canada.


Participation and attempt


In Canada, not only is every one a party to a criminal offence, and subject to criminal liability, if
one actually commits the offence, but the Criminal Code also criminalizes aiding and abetting
(section 21), common intent for an unlawful purpose (subsection 21(2) and section 23.1),
counselling an offence that is committed (section 22) and the attempt to commit an offence
(section 24). Part XIII of the Criminal Code sets out the general scheme for the punishment of
attempts, accessories, counselling, as well as conspiracies.




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Liability of legal persons

Canada is a country, which provides for corporate criminal liability. It used to be that this aspect of
the law was only to be found at common law, but in March 2004, the Criminal Code was amended
to codify the criminal liability of organizations. Organizations include, for example, a corporation, a
company, a trade union or a partnership.


Section 22.1 of the Criminal Code addresses the criminal liability of an organization when the
offence requires the prosecution to prove fault other than criminal negligence. In such a case,
criminal liability may be found in three situations. The prosecution must prove beyond a reasonable
doubt that an organization is a party to an offence if, with the intent at least in part to benefit the
organization, one of the organization’s senior officers: (1) acting within the scope of his or her
authority, is a party to the offence; (2) having the mental state required to be a party to the offence,
and acting within the scope of his or her authority, directs the work of other representatives of the
organizations so that they commit the act or omission that is specified in the offence; or (3) knowing
that a representative of the organization is or is about to be a party to the offence, does not take all
reasonable measures to stop them from being a party to the offence.


Section 22.2 of the Criminal Code provides for the criminal liability of an organization in instances
where the offence only requires proof of criminal negligence. Liability will be found in those cases
where two elements are proven beyond a reasonable doubt. First, it must be proven that, acting
within the scope of their authority: one of the organization’s representatives is a party to the offence;
or two or more of its representatives engage in conduct such that, if it had been the conduct of only
one representative, that representative would have been a party to the offence. Secondly, it must be
proven that the senior officer, who is responsible for that aspect of the organization’s activities that
is relevant to the offence, departs – or the senior officers collectively depart – markedly from the
standard of care that, in the circumstances, could reasonably be expected to prevent a representative
from being a party to the offence. Thus, in the case of finding an organization criminally liable for a
criminal negligence offence, the corporate culture can be said to be taken into account.




                                                    16
There is no obligation to charge a legal and a natural person jointly with the same offence. Each
can be charged and prosecuted separately, and prosecuting the legal person does not necessitate
prosecuting the natural person, and vice-versa.


Section 718 of the Criminal Code establishes the purposes of sentencing. Legal persons cannot
be imprisoned, therefore, pursuant to section 735 of the Criminal Code, an organization that is
convicted of an indictable offence is generally liable, in lieu of imprisonment, to be fined in an
amount that is in the discretion of the court. Probation orders, as a sentencing option, are
provided for in section 732.1 of the Criminal Code. They can be imposed on natural and legal
persons. In the case of organizations, additional conditions are contemplated in subsection
732(3.1) that could be prescribed, such as making restitution to a person for any loss or damage
suffered as a result of the offence; establishing policies, standards and procedures to lessen the
likelihood of the organization re-offending; communicating those policies to their representatives
and reporting to the court on their implementation; and having the organization publicize, in a
manner specified by the court, the offence for which it has been convicted and the sentence
imposed, together with the steps that it is taking to prevent it from committing a subsequent
offence.


Protection of witnesses, experts, victims and other persons


Witness protection is an important law enforcement tool in the fight against crime, including against
corruption. In Canada, the Witness Protection Program Act promotes law enforcement by
protecting not only those persons who are assisting the Royal Canadian Mounted Police (R.C.M.P.),
but also those persons who may be assisting activities that are being undertaken by any law
enforcement agency or international criminal court or tribunal with whom the R.C.M.P. has entered
into an agreement or arrangement under the Act. Various Criminal Code offences also apply to
protect witnesses, experts, victims and other persons, such as the offences of intimidation of a
justice system participant (section 423.1) and obstructing justice (subsections 139(1) and (2)).
Section 2 of the Criminal Code defines a “justice system participant”. Such participants include
prosecutors, lawyers, judges, police officers, court administrative staff and jurors, as well as
informants, prospective witnesses and witnesses.



                                                   17
Specialized bodies


In Canada, specialized, integrated units have been established to investigate and prosecute
serious financial crime. For example, the R.C.M.P. has thirteen Integrated Proceeds of Crime
sections, which include lawyers from the Department of Justice, forensic accountants from
Public Works and Government Services Canada, tax investigators from the Canada Revenue
Agency and customs officers from Canada Border Services Agency. As well, the R.C.M.P. has
created nine Integrated Market Enforcement Teams, which have been designed to enhance the
protection of Canada's capital markets through the detection, investigation and prevention of
serious corporate and financial markets crime.


Bank secrecy


Bank secrecy poses no difficulty for Canada. As long as the relevant standard is met, courts in
Canada can and do order the production of banking records.


International Cooperation (Chapter IV, Articles 43 to 50)


Promoting, facilitating and supporting international cooperation is one of the purposes of the
Convention. Given the transnational phenomenon of corruption, with the ease of
communications and travel that come with globalization, it is essential that strong tools are in
place to enhance cooperation in the fight against corruption. As a consequence, the Convention
includes important provisions to be used as a legal basis for making cooperation possible. The
Convention includes articles dealing with extradition, the transfer of sentenced persons, mutual
legal assistance, the transfer of criminal proceedings, law enforcement cooperation, joint
investigations and special investigative techniques.


Extradition


Canada has comprehensive extradition legislation and a network of extradition treaties. The
Extradition Act was modernized in 1999. Extradition assistance may be triggered by requests made



                                                 18
pursuant to a bilateral extradition treaty between Canada and the requesting country; on the basis of
a multilateral treaty, such as the UNCAC; further to a specific agreement entered into by Canada
with a requesting state or entity concerning persons in a particular case; and as a result of a general
designation of the requesting state or entity as an extradition partner under the Extradition Act.


There is no impediment in Canada’s extradition legislation to the extradition of nationals. However,
where both the requesting state and Canada have jurisdiction to prosecute in a particular case, an
assessment would be made in Canada of the evidence and the circumstances and, on the basis of
that assessment, it would be determined whether it would be equally effective to prosecute the
person for the particular conduct in Canada as it would be if the person were extradited to the
requesting state for prosecution. The grounds of refusal for extradition are set out in sections 44 to
47 of the Act. Dual criminality is required for extradition.


Transfer of sentenced persons

The International Transfer of Offenders Act is the legislation in Canada which governs the
transfer of Canadian and foreign offenders. The consent of the offender, the foreign entity and
Canada is required before a transfer may take place.



Mutual legal assistance


Canada can provide mutual legal assistance in criminal matters in relation to requests submitted to
Canada under bilateral or multilateral conventions and under administrative arrangements, pursuant
to the Mutual Legal Assistance in Criminal Matters Act.


Asset Recovery (Chapter V, Articles 51 to 58)


Chapter V is integrated in many ways with the rest of the Convention, but it also stands alone to
some extent, since it also covers its own specific preventive measures and deals with matters of
international cooperation. The Chapter emphasizes that the return of assets is a fundamental
principle of the Convention and that States Parties are expected to provide one another with the



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widest measure of assistance and cooperation. Article 57 includes a series of provisions
governing the return of confiscated proceeds and other property, and generally prefers return to
the requesting State Party, but applies different rules bearing in mind the strength of the property
interest of the requesting State Party.


Canada has extensive measures in place that enable Canada to deal with money laundering and
asset recovery. Canada’s legislative framework includes such statutes as the Criminal Code, the
Corruption of Foreign Public Officials Act, the Proceeds of Crime (Money Laundering) and
Terrorist Financing Act, the Mutual Legal Assistance in Criminal Matters Act and the Seized
Property Management Act.


Under the Criminal Code, a judge can order property to be forfeited to the government that
prosecuted the offender (either the federal or a provincial government), unless a third party, not
involved in the offence, had a valid and lawful interest in the property, in which case the court
would order the property returned to that person (section 462.41). An innocent third party can
include a requesting State Party in the case of corruption involving public funds. Thus, the
proceeds of crime provisions allow for the return of seized or confiscated property to the valid
owner. Return of property can also be effected through the use of the section 490 provisions of
the Criminal Code, dealing with the disposal of seized property. Provision is made for the
forfeiture of offence-related property upon conviction (section 490.1), or when an accused has
died or has been at large for more than six months (section 490.2). The Criminal Code deems
that forfeited property belongs to Canada, but pursuant to the Seized Property Management Act,
the assets are available for return through the sharing with a cooperating State, providing that
there exists a reciprocal bilateral agreement.


[Paragraph re-positioned]
The Mutual Legal Assistance in Criminal Matters Act provides for the direct enforcement of
foreign requests for the restraint and confiscation of proceeds of crime. Canada may provide,
inter alia, assistance for enforcement of orders for the restraint, seizure and forfeiture of property
situated in Canada. The Act, however, requires that a person be convicted in the requesting
state of an offence that would be an indictable offence if it were committed in Canada, and


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that the conviction and the order are not subject to further appeal, in order for Canada to
enforce a foreign order of forfeiture of property. Canadian legislation does not allow the
enforcement of foreign orders based on a civil process, a process that is available in some
countries. However, as mentioned, Canada’s legislation does allow for the return of proceeds of
crimes to an innocent third party, which can be the requesting state in the case of corruption
involving public funds.


The Proceeds of Crime (Money Laundering) and Terrorist Financing Act sets out record-keeping
and client identification requirements for financial service providers, provides for the reporting
of suspicious financial transactions and of cross-border movements of currency and monetary
instruments, and created a financial intelligence unit (FIU) for Canada, known as the Financial
Transactions and Reports Analysis Centre (FINTRAC). Financial institutions are obliged to
report suspicious transactions to FINTRAC. When FINTRAC determines that there are
reasonable grounds to suspect that some information would be relevant to investigating and
prosecuting a money laundering offence, the Centre must disclose this information, for example,
to the appropriate police force. FINTRAC can also enter into an agreement for exchanging
information with foreign FIUs and has entered into agreements with counterpart agencies in
jurisdictions around the world. The Act was recently amended to enhance the client
identification, record-keeping and reporting measures applicable to financial institutions and
intermediaries and to establish a registration regime for money services businesses and foreign
exchange dealers.


In June 2002, FINTRAC became a member of the Egmont Group of FIUs, whose purpose is to
enhance cooperation and information exchange in support of member countries' anti-money
laundering and terrorist financing regimes. More recently, on July 7, 2006, the Canadian
Minister of Finance announced the selection of Toronto as the permanent headquarters of the
secretariat of the Egmont Group.

Canada is an active member in the Financial Action Task Force. As well, Canada has joined the
Asia/Pacific Group on Money Laundering, after having been an observer in that organization
since 2000.



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Technical Assistance and Information Exchange (Chapter VI, Articles 60 to 62)


The UNCAC also emphasizes the importance of technical assistance and information exchange and,
to this end, includes a specific chapter to promote such initiatives. Anti-corruption training
programs are encouraged, as is the widest measure of technical assistance. The sharing of research
and analytical expertise is also to be supported and, generally, States Parties are required, to the
extent possible, to make concrete efforts to coordinate with each other and with public international
organizations, in strengthening the capacity of developing countries to prevent and combat
corruption. The optimal implementation of the Convention by many States Parties is likely
dependent upon effective technical assistance efforts. This subject is being given priority attention
by the Conference of the States Parties. The first meeting of the interim open-ended
intergovernmental working group on technical assistance is to be held in Vienna on October 1 – 2,
2007.


The Canadian International Development Agency (CIDA) supports technical assistance projects
and programs in the areas of human rights, democratization and good governance. This includes
anti-corruption technical assistance.


CIDA’s technical assistance support can be undertaken in a variety of ways, including through
country-specific initiatives, with assistance from other Canadian departments and agencies, as
needed; working through (and in cooperation with) multilateral organizations that are combating
corruption; and working with local governmental and non-governmental partners in other
countries to promote the fight against corruption.

Canada also financially supported the UNCAC negotiations and the first meeting of the
Conference of the States Parties, as well as other international anti-corruption initiatives, such as
the G8-sponsored Extractive Industries Transparency Initiative, with a contribution of $750,000
to the Multi-donor Trust Fund and an additional $100,000 per year for five years. In addition,
Canada is reaching out to other countries to assist them in completing the Self-assessment



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checklist on the implementation of the UNCAC in an effort to ensure a better implementation of
the Convention.


Conclusion


The negotiation of the UNCAC marked a great international achievement. It has been gratifying
to see the level of support that the Convention has received through the large number of
signatures and ratifications. The entry into force of the Convention happened relatively quickly
and the Conference of the States Parties has already commenced its work and will be holding
working group meetings in respect of certain key issues between the plenary meetings of the
Conference of the States Parties. To be truly effective, the Convention must be well implemented
and applied, and this objective will be the focus of the Conference of the States Parties through
its technical assistance and implementation review efforts.




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