Libby speaks out on the Corruption of Foreign Public Officials Act


House of Commons


June 18, 2013

Ms. Libby Davies (Vancouver East, NDP):

Mr. Speaker, I am pleased to rise in the House today to speak to Bill S-14, an act to amend the Corruption of Foreign Public Officials Act, and as we are debating this at second reading, it still has to go to committee.

I have listened with interest to the debate in the House today. It appears that all parties will be supporting this bill. We are debating it in principle but, nevertheless, it is important for us to go through the bill to examine it, as we should all legislation, and then it will go to committee.

I want to begin by saying that these last few weeks in the House have been particularly difficult because the government has used time allocation, a form of closure, I think 47 times, if I am keeping the tab correctly. It is really quite incredible that so much legislation has been rushed through.

We serve our constituents in this place. We do our work in the constituency, but our role in this House is due diligence in examining legislation and going through it. Even if we are going to support it, we have to go through it. That is part of holding the government to account in our parliamentary democracy, so it is very disturbing that we see the pattern over and over again. It has become routine. Other colleagues in the House have commented earlier that bills are now pro forma. We are expected to have a couple of hours of debate and take a cursory look, and then there is a time allocation for going through committee, report stage, and third reading. It is all established by timelines.

As members well know, that is not the way to do parliamentary business.

I wanted to begin my remarks with that because, as someone who has been around here a few years, I have watched the erosion of parliamentary and democratic practice in this House.

I can almost hear the voice of Bill Blaikie in my head, the former member for Elmwood—Transcona. He was one of those folks in this place who had the long-term memory to know what had changed over the years. When change happens incrementally, just a little snippet at a time, it is difficult to get that overview. I think it would be useful one day to have that overview and to actually look at how much certain practices have changed in the House, say, from 10 years ago or 20 years ago. I think we would all be quite shocked, actually, no matter what matter party we belong to.

In any event, we are debating this particular bill today.

I want to begin by saying, as others have remarked today, that the bill is long overdue. Canada has, really, an embarrassing record on corruption overseas, in terms of lack of legislation.

As many have pointed out today, Transparency International, a very credible organization that monitors corruption and bribery in terms of what happens in different places in the world, in its 2011 report, ranked Canada as the worst of all the G7 countries with regard to international bribery. It pointed out that we had little or no enforcement, based upon the very minimal legislation we had.

There is no question that this is absolutely long overdue. It begs this question. Why does it take so long?

We look at the legislative agenda and look at all of the little boutique bills that come through on the Criminal Code, when they do not need to happen. Why has it taken so many years for something as major as this, which would deal with crime and corruption? Why has it taken so many years for anything to come forward? Where is the balance here? Where are the priorities? We are sort of pulling apart the Criminal Code clause by clause and adding in more mandatory minimum sentences. We have had so many Conservative backbencher bills. Yet, with something as major as this, in terms of Canada’s role in the international community, we are hauled on the carpet by an organization that monitors international bribery and corruption, which has said, “You guys have got a pretty bad record; in fact you’re basically the worst of all of the highly industrialized countries”. This is an embarrassment.

Further, there have only been three convictions in the last number of years, in fact, since 1999, and two of those were in the last two years. This is a pretty appalling record.

Suffice it to say I am glad, at least, that we are debating this bill today. At least the bill would take some steps.

Just to focus for a moment on what this bill would do, for those who are watching the debate, there would be four main changes to the Corruption of Foreign Public Officials Act. One of them would be to increase the maximum sentence of imprisonment applicable to the offence of bribing a foreign public official from five to fourteen years. That is a fairly significant change.

The second change in the bill would eliminate an exception that had been in operation for what is called facilitation payments, where foreign officials are paid to expedite the execution of their responsibilities. I will come back to this, because there are some concerns about it. While we agree that this exception should be eliminated, we have to examine the impact of that, for example, on NGOs that are operating in extremely difficult circumstances in political environments that are very risky and where they have to provide payments to get essential emergency humanitarian goods through—for example, going through police checkpoints. One does have to find that balance.

Third, the bill would create a new offence for falsifying or concealing books or records in order to bribe or conceal bribery of a foreign official. This is a very important change in terms of ensuring that transparency goes right the way down the line.

Finally, the bill would establish a nationality jurisdiction that would apply to all of the offences under the act. What this means is that Canadian nationals could be prosecuted for offences that are committed overseas. Again, that is a very important measure.

I want to say very clearly that New Democrats have long supported clear rules that require transparency and accountability by both Canadian individuals and corporations overseas. In fact, the NDP has had a number of bills in this regard. One of my colleagues, the member for Burnaby—New Westminster, had Bill C-323, which would allow lawsuits in Canadian courts by non-Canadians for violations of international obligations. The member for Ottawa Centre had Bill C-486, which would require public due diligence by companies using minerals in the Great Lakes region of Africa.

These are very important issues for Canadians, because we know that the extraction industry in Canada and the way it operates overseas is a major business concern. The way those companies do business is something of great concern to Canadians in terms of ethical practices. We have seen many movements here in Canada, including NGOs, the labour movement and individual citizens who have made sure they became active on this issue.

I want to point out something about a bill we voted on not that long ago, Bill C-300, which was a Liberal member’s bill. When I raised transparency in the debate, the Liberal member for Charlottetown who replied to me pointed to Bill C-300 as another attempt to bring about better transparency and corporate accountability in foreign practices.

What is really interesting, and I am sure many members here will remember, is that it was defeated in part because 13 Liberal members voted against it. I remember the bill when it came up. There was intense advocacy for the bill from major NGOs across the country. They did an incredible job. The bill itself was very reasonable. It laid out basic standards for practice. However, there was, of course, a lobby against the bill. It was really quite shocking that 13 Liberal members voting against the bill resulted in the bill being defeated by a mere 6 votes.

We actually did come close to having that bill go through the House of Commons. I know that many of the organizations and individuals that had supported the bill were quite shocked that it had been defeated and were hugely disappointed about the amount of energy, time and effort that had gone into it.   

It was a wonderful example of how Canadians look beyond their own border, look globally to see what Canada is doing. They had paid great attention to the need for Canadian corporations, companies and businesses to be accountable, to engage in ethical practices and to ensure there is not bribery and exploitative practices taking place in terms of labour rights or the environment.

These are things Canadians are actually very concerned about. I always feel very inspired when I see these organizations and people, whether they are putting out petitions or sending us emails. People really care about what we do in other parts of the world. We care about whether or not people are being exploited.

Just a little while ago, my colleague from Ottawa Centre talked about the situation in Bangladesh. I saw the story too, last night on CBC, and it is gut-wrenching and it makes us want to jump up and ask what we have to do to make sure these kinds of terrible, appalling conditions no longer exist.

We are talking about thousands of people who lose their lives because they work in terrible conditions where safety is disregarded, where people are not paid decent wages. If we layer on top of that all of the bribery and corruption that goes on, this is a multi-billion dollar business in terms of corruption and unethical practices.

I do not think the bill before us would address all of that, so the other bills we have before the House, particularly from the NDP members that I mentioned, are critical to ensuring there is a comprehensive approach to the way we are dealing with this situation.

We do have some concerns about the bill, which I would like to put on the record. assuming that the bill does get referred to committee. Because the bill would amend the definition of a business to now include not-for-profit organizations, we believe that this should be studied very closely at committee, and obviously witnesses need to be brought in to look at the impact of this particular change on charitable and aid organizations. As I mentioned earlier, the reality is that those organizations do sometimes, out of sheer necessity, have to make payments to expedite or achieve delivery of very essential items and humanitarian goods. This is something that is out there in the real world.

The bill is really tackling corruption and bribery, from the point of view that money is being made, money is being put in people’s pockets and officials at embassies and so on are being bribed. That is what we are trying to get at, so I think we have to be very careful that we do not, by consequence, lay down a rule that could actually have a negative impact on organizations that are legitimately and in good faith trying to do very important work in some of these global areas where there is political, military and civil conflict going on. To make sure that kind of aid is delivered in a proper way is very important. We are hoping this issue would be examined more closely at committee.

The second item we think needs further examination is that the committee should also study the consequences of establishing an indictable offence punishable by up to 14 years in prison, because once 14 years is reached, it is actually the threshold at which conditional or absolute discharges of conditional sentences become impossible. It is obviously a much more serious penalty, and the committee, when it receives the bill, should examine that very carefully to make sure there is a balance in terms of our judicial system and conditional sentencing or the question of absolute discharges.

It is easy to make a blanket case, and again we have seen that so often with the Conservative government. It tends to make harsh, blanket rules that do not allow for discretion within our court system. Our court system has a history and a tradition of allowing judicial discretion, so judges can actually examine individual cases and the circumstances that warrant a harsher or a more lenient approach. That is what balance in the judicial system is about.

Therefore, one has to be very careful that in bringing forward new legislation we do not tip that balance and create a system that becomes so rigid that it becomes counterproductive. As the penalty is so harsh, people could end up pleading not guilty more frequently, or prosecutors may even be more reluctant to bring forward charges. There could be unintended consequences of having penalties that are so harsh. This is an issue that we think should be looked at in the bill. We support, in principle, the penalty being increased and the sentencing threshold being increased. However, we have to look more carefully at whether 14 years is the right cut-off.

Finally, in terms of changes that we think need to be looked at, there is the question of the rule on the facilitation payments that I spoke about earlier. We need to figure out how it impacts NGOs and non-profits. That issue would not be part of royal assent but rather would be under the consideration of cabinet, which is in the current text. That one aspect of the bill, if this bill were passed as is, would not go ahead with the rest of the bill. Therefore, that has to be examined. We need to know the reason that is being put aside. The discussion on the facilitation payments as they would impact NGOs might help inform that debate, but it is something we need to look at.

I also want to talk briefly about more current situations. We heard today from the member for Ottawa Centre, who updated the House on a communiqué he had received from the G8 that is currently taking place. It was quite interesting. He pointed out that in this communiqué the issues of corruption and transparency were quite prominent. His point was that we need to know that our own government is committed, not only to the words in these communiqués, but that it is actually going to follow up. I thought the member used a very good example when he spoke about international treaties that we sign for which there is no follow-up.

The example he used was Bill S-10 that was rushed through this House a few days ago, on cluster munitions. I was one of the people who spoke to that bill. The member pointed out very clearly in the debate on that bill that the NDP believes Bill S-10 would actually undermine the very international treaty that it is meant to be following up. The point is that when these communiqués come out and these commitments are made in places like the G8, we need to know they are actually going to be followed up. We need to know that those commitments mean something.

Again, we get back to this particular bill, Bill S-14, that has taken so long to come forward.

Why has it taken so long? Why is there not a greater priority and emphasis on these kinds of bills? In the G8 communiqué, among the issues that were flagged, was the need to have greater transparency and a public registry.

The member for Ottawa Centre told us that one of the proposals is the need for a regime whereby companies would not be able to set up a shell company. Even if there is good legislation, if enforcement is to be taken on issues of bribery and corruption, it is very difficult. There could be a lack of political will, as I have just spoken about, or it could be that they are trying to figure out who the operatives are in a particular company. There is the idea of a public registry and the need for better transparency, as well as the notion that we should not allow elaborate legal complexities for the setting up of shell companies that in effect allow individuals and operatives to hide behind other entities. That makes it much more difficult to figure out who is doing what and where enforcement should be applied.

That is a very significant issue, and it is not covered in the bill, so it does show us that the bill does not go far enough. I think that was the member’s point this morning.

Nevertheless, we are supporting the bill at second reading. We will pay great attention to it in committee. We will seek to improve the bill so that it lives up to its spirit and intent, which is ensuring that we tackle bribery and corruption by public officials in other countries.