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Ethics 4. Annual review of anti-corruption compliance standards and to investigate transnational bribery and other forms of corrup- procedures including internal controls, ethics and compliance tion involving foreign public officials outside Canada. The programs; RCMP, now in close communication with the U.S. Department 5. Assigning responsibility to one or more senior corporate execu- of Justice and other foreign enforcement agencies, has at least 20 tives for the implementation and oversight of the company’s additional active investigations under way. Clearly the pressure is anti-corruption policies, standards and procedures; on for the RCMP to continue to take action as it did in the 6. A system of financial and accounting procedures including a Niko case. system of internal controls designed to ensure books, records Another thing is certain. It is critical now for corporations to and accounts cannot be used for the purpose of bribery or have in place certain fundamental elements in order to prevent concealing bribery; and detect corruption.The Niko Resources case is proof now that 7.Mechanisms designed to ensure anti-corruption policies,standards Canada is taking the fight against international bribery seriously. and procedures are effectively communicated to all directors, offi- And the Alberta Court of Queen’s Bench has gone a long way to cers and employees and, where appropriate, agents and business providing Canadian companies with guidance on what is expect- partners; including periodic training and annual certification; ed when it comes to compliance. 8. An effective system for providing guidance and advice to directors, officers, employees and, where appropriate, agents The views expressed are those of the author and business partners on complying with the company’s anti- and do not represent the views of McCain corruption compliance policies, standards and procedures; Foods Limited (or its affiliates). 9. Disciplinary procedures to address violations of the anti-cor- ruption laws and the company’s Code of Conduct, policies and Christa C.Wessel B.A., LL.B., C.Dir. procedures by the company’s directors, officers and employees; is the chief legal officer at McCain Foods 10. Appropriate due diligence and compliance requirements Limited. pertaining to the retention and oversight of all agents and business partners; 11. Standard provisions in agreements, contracts and renewals thereof with all agents and business partners to prevent the violation of anti-corruption laws; and 12. The periodic review and testing of its anti-corruption compli- ance code, standards and procedures to evaluate and improve their effectiveness in preventing and detecting violations of anti-corruption laws and the company’s anti-corruption code. More significantly, Canadian companies can expect to be The already long arm of the U.S. law continues to grow, as theexcellence increasingly scrutinized and investigated for their business prac- tices overseas. ADVICE. REPRESENTATION. OUTCOME. U.S. Department of Justice seeks to enforce its Foreign Corrupt It’s what we do. PracticesAct (FCPA) against organizations and individuals with a rel- atively limited nexus to the U.S.The U.S. Department of Justice is also actively encouraging enforcement agencies in other countries to investigate and take action against foreign organizations and individuals suspected of corruption.Penalties can include fines,dis- gorgement of profits and other sanctions, including jail time. In another recent development the UK recently adopted its ag mlaw yer s.c om own Bribery Act, an additional law that has teeth and is extra-ter- ritorial in scope.Companies charged with violating it will have to Affleck Greene McMurtry LLP PAUL EEKHOFF show they had adequate procedures in place to prevent bribes. 365 Bay Street, Suite 200, Toronto, Canada M5H 2V1 T 416.360.2800 F 416.360.5960 In 2008, the federal government gave the RCMP resources to form two international anti-corruption units.Their mandate is Excellence in Commercial Litigation and Competition Law AUTOMNE 2011 CCCA Canadian Corporate Counsel Association 13