Facilitation payments are no longer exempt under Canada’s Corruption of Foreign Public Officials Act. On October 30, 2017, Global Affairs Canada, which manages diplomatic relations and promotes international trade, announced the end of the exemption. This change was initiated in 2013 but delayed to give companies time to adjust their policies and procedures. Effective October 31, 2017, even small facilitation payments that transpire, in whole or in part, in Canadian territories are illegal. Facilitation payments made elsewhere involving a Canadian citizen, a Canadian permanent resident, or a Canadian entity are also prohibited.
Facilitation payments are commonly known as “grease payments.” They “are made to expedite or secure performance by a foreign public official of any ‘act of a routine nature’ that is part of the foreign public official’s duties or functions.” A routine act is, for example, the issuance of a permit.
Canada Joins the Ranks
Canada joins a sizeable group of other jurisdictions, including the United Kingdom, and multinational companies by repealing this exemption. Since 2011, when the UK Bribery Act went into effect, the United Kingdom has prosecuted companies for making facilitation payments. The United States’ Foreign Corrupt Practices Act, on the other hand, continues to exempt facilitation payments, although they are narrowly defined. South Korea, Australia, and Japan have also preserved the exemption.
The international group Organization for Economic Cooperation and Development criticized the exemption in 2009 for its “corrosive effect” on anti-corruption law. Proponents of the exemption argue facilitation payments are necessary in countries that do not have the resources to accomplish routine acts.
Regardless of the need or lack thereof for the exemption, the fact remains that a facilitation payment with Canadian ties is now punishable by fines and up to fourteen years of imprisonment.